Tindolph v. Schoenfeld Bros., Inc.

• Decision Date: 08 July 1930
• Docket Number: 22303.
• Citation: 157 Wash. 605,289 P. 530
• Parties: TINDOLPH et ux. v. SCHOENFELD BROS., Inc.
• Court: Washington Supreme Court

289 P. 530

157 Wash. 605

TINDOLPH et ux. v. SCHOENFELD BROS., Inc.

No. 22303.

Supreme Court of Washington

July 8, 1930

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by E. F. Tindolph and wife against Schoenfeld Bros., Inc. From a judgment for plaintiffs, defendant appeals.

Reversed with instructions.

Battle Hulbert & Helsell and Shorts & Denney, all of Seattle, for appellant.

Chas E. Congleton, of Seattle, for respondents.

FRENCH J.

Approximately twenty years ago the Seacoma Beach Improvement Company platted certain lands on Three Tree Point, about fourteen miles south of Seattle on Puget Sound. In so far as this case is concerned, the tract of land in question was divided into twenty-three lots or parcels, and we may assume, for the purpose of this case, was surveyed and staked out showing upon a map or plat the size of each of the respective tracts together with sufficient data, so that, as they were sold, they might properly be described by metes and bounds description. The plat itself was never filed or recorded, and seems to have been used only for the purpose of designating the exact location of the various tracts or lots upon the ground.

In June, 1913, tract 8 was sold by the Seacoma Beach Improvement Company by metes and bounds description to one Mary E. McLaren, the deed containing certain building restrictions which, in so far as they are material to this case, read as follows: 'The second parties, heirs and assigns, also agree * * * and not to construct on said tract more than one residence.' This tract was thereafter deeded to one White, and the tract in question being one hundred twenty feet wide, the northerly one-half of it, being a tract sixty feet in width, was thereafter deeded by White to the appellant, the deed to appellant containing no restrictions, but containing the following recitation: 'This conveyance does not warrant against conditions and restrictions contained in deeds under which title is claimed.' On the half of the lot or tract not sold to appellants there is already a house. Appellants desiring to erect a house on the portion of the land which it had purchased, and having already built a garage preliminary to erecting a dwelling house, this action was brought by respondents, owners of one of the tracts of land which had been conveyed by the Seacoma Beach Improvement Company, to prevent the erection of a house on the portion of the tract purchased by appellant, for the reason that there was already one house upon said tract. This appeal is from a judgment enjoining the erection of any house and compelling the removal of the garage structure already built.

The general law relative to restrictions has been covered by this court in the case of Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 194 P. 536, and that such restrictions, when a part of a general plan under which an addition is marketed, and pursuant to which the lots or tracts generally have been sold, will be enforced, is well settled. And that such restrictions, generally speaking, inure to the benefit of the various respective lot owners, is equally well settled.

But it is equally well settled that the scheme or plan must apply substantially to the entire tract sold. The facts in this case show that the original body of land here in question was divided into twenty-three lots or tracts, and in this connection it must be remembered that the plat was not recorded so as to make effective any dedication or restriction contained on such plat if any actually did appear thereon. Twelve of the twenty-three tracts sold contain the restrictive clause providing that not more than one house should be built on a lot or tract, and practically the only testimony concerning the restrictions was that five of the original purchasers of lots testified as to conversations with and representations made by the manager of the Seacoma Beach Improvement Company relating to the fact that such restrictions were to be included in all deeds. Eleven of the lots conveyed contained no restriction. One of the twelve lots containing such provision was divided and two houses built thereon. Three of the lots containing no restrictions have been divided, and two houses have been built on each of such tracts as thus divided.

The leading case covering the question of covenants relative to the restrictive use of the lots is De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 24 A. 388, 392 where the rule is laid down that 'the law, deducible from these principles and the authorities applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, * * * that each purchaser is to be subject to and to have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.' In the same case, however, it is announced that the action is held not to be maintainable between purchasers not parties to the original covenant and ...