Taunton v. Trammell, 5 Div. 483

• Decision Date: 12 October 1950
• Docket Number: 5 Div. 483
• Citation: 48 So.2d 190,254 Ala. 252
• Parties: TAUNTON et al. v. TRAMMELL.
• Court: Alabama Supreme Court

Page 190

48 So.2d 190

254 Ala. 252

TAUNTON et al. v. TRAMMELL.

5 Div. 483.

Supreme Court of Alabama.

Oct. 12, 1950.

Hines & Hines, of LaFayette, W. Howell Morrow, of Lanett, and Rushton, Stakely & Johnston, of Montgomery, for appellants.

Walker & Walker and R. C. Smith, all of Opelika, and R. C. Wallace, of LaFayette, for appellee.

LIVINGSTON, Justice.

The appeal is from an amended decree of the Circuit Court, in Equity, of Chambers County, Alabama, restraining the construction of a building on appellants' lands in Chambers County and requiring the removal of a gasoline storage tank and pumps from said lands.

Omitting formal allegations and others not necessary for this decision, the bill alleges that in 1934 the complainant, appellee here, sold to one Hall certain particularly described real estate located in Chambers County, Alabama, with the following provision in the deed of conveyance: 'It is agreed that there shall never be any garage, filing station or bulk plant for the storage of gasoline built on the above lots.' It was then averred that in 1944 Hall, with the same restrictions, conveyed this property to one Forrester, and that in 1946 Forrester, with the same restrictions, conveyed it to the appellants.

In section 5 of the bill appellee alleged two breaches of the condition or restriction, (1) that the respondents had installed a gasoline storage tank and pump on said premises and were offering gasoline and oil for sale to the public; and (2) that at the time of the filing of the bill appellants were in the process of erecting a filling station on said premises.

The bill sought temporary and permanent injunctions restraining the appellants from proceeding with the building or erection of a garage, filling station or bulk plant for the storage of gasoline on the premises, and a mandatory writ of injunction requiring appellants to remove from the premises the gasoline storage tank and pumps installed by them, and general relief.

Demurrers to the bill were interposed by appellants and overruled by the trial court. Thereupon appellants answered the bill, admitting that they had installed a gasoline storage tank and pump on the premises in July 1947, and that they had maintained and operated the same continuously since that time. They further admitted that at the time of the filing of the bill they were in the process of erecting a filling station on the premises in question. They deny that the alleged restrictive agreement was incorporated in the conveyance to them or to their predecessors in title or that it constituted any part of the legal consideration for the same. For further defense appellants sought to show that the restrictive agreement was solely for the personal benefit of appellee in restraint of trade and did not run with the land and did not affect the value of other real estate in the neighborhood; that the right which appellee sought to enforce was barred by laches, and, further, that on account of the changed conditions of the community the restrictions should no longer be enforced.

The cause was submitted on an agreed stipulation of facts, a comprehensive map of the surrounding territory and several photographs showing the premises involved, the adjoining and adjacent properties, together with the improvements thereon. The trial court entered a decree granting the relief prayed for and permanently enjoined the erection of the filling station. Apparently inadvertently, the trial judge failed to include in the decree a mandatory order for the removal of the gasoline storage tank and pump. But within thirty days a motion was made to correct the decree in this particular and the same was sustained and the decree amended accordingly. This appeal followed.

We note that appellants admitted in the stipulation of facts that the condition or restriction, 'It is agreed that there shall never be any garage, filling station or bulk plant for the storage of gasoline built on the above lots,' was written into each conveyance in the chain of title under which appellants hold.

The assignment of error numbered one and predicated upon the lower court's overruling of appellants' demurrer to the bill of complaint was not argued in brief and was therefore waived. Appellants argue the remaining six assignments of error in a somewhat general and collective manner, but we think separately and specifically enough to avoid the penalty that where one assignment is without merit the others will not be considered. Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Alabama Co. v. Norwood, 211 Ala. 385, 100 So. 479; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749.

Appellants insist the evidence is not sufficient to show a violation of the restriction or condition on that phase of the case seeking a mandatory injunction for the removal of the gasoline pump and storage tank. The answer admits the installation of 'a gasoline storage tank and pump on said above premises, to-wit, July 1947, and that they have maintained and operated same continuously since said time without any objection on the part of the plaintiff until the filing of this suit.' Several pictures of the gasoline pump were introduced in evidence....