Tower v. Mudd Realty Co.

• Decision Date: 05 November 1957
• Docket Number: No. 37642,37642
• Citation: Tower v. Mudd Realty Co., 317 P.2d 753 (Okla. 1957)
• Parties: Ray A. TOWER et al., Plaintiffs in Error, v. MUDD REALTY COMPANY, a Corporation and Vernon L. Mudd, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 753

317 P.2d 753

1957 OK 278

Ray A. TOWER et al., Plaintiffs in Error, v. MUDD REALTY COMPANY, a Corporation and Vernon L. Mudd Defendants in Error.

No. 37642.

Supreme Court of Oklahoma.

Nov. 5, 1957.

Syllabus by the Court

1. Covenants restricting the use of real property, although not favored, will nevertheless be enforced by the courts, where the intention of the parties in their creation is clear, and the restrictions or limitations are confined within reasonable bounds. In construing such covenants effect is to be given to the intention of the parties as shown by the language of the instrument, considered in connection with the circumstances surrounding the transaction and the object sought to be accomplished by the parties.

2. Where, in the dedication and plat of a city addition, certain lots are identified as residential lots with single or multiple family dwellings thereon and other lots are identified as residential lots, upon which no structure should be erected other than detached single family houses, the erection and maintenance of commercial automobile parking facilities on any of them is prohibited.

3. In order to be sufficient to warrant the release of property from the servitude of a restrictive covenant, the evidence of a change of conditions must establish that the original purpose and intent of the restrictions have been altered or destroyed by the changed conditions and cannot be accomplished by the enforcement of said restrictions.

4. A city ordinance purporting to rezone certain block for purposes other than residential purposes did not supersede restrictions on block limiting its use to private residences, as to prevent enforcement of restriction.

Appeal from the District Court of Tulsa County; Leslie E. Webb, Judge.

Suit by Plaintiffs, Ray A. Tower and Louise M. Tower, his wife, James A. Farrier and Verda O. Farrier, his wife, Jack L. Blackburn and June B. Blackburn, Myron L. Sewell and Jean Gould Sewell, his wife, Freddie D. Atkins and Gladys M. Atkins, his wife, Thomas Lee Brower and Patsy Patton Brower, his wife, Neal D. Rhodes and Katie D. Rhodes, his wife, and William Raymond Whiteley and Bessie M. Whiteley, his wife, against Defendants, Mudd Realty Co. and Vernon L. Mudd for injunction to prevent erection and maintenance of automobile parking lot in alleged violation of restrictions in dedication and plat. Judgment for Defendants and Plaintiffs appeal. Reversed and remanded with directions.

Poe, Murdock & Langford, Tulsa, for plaintiffs in error.

Blackstock & Jones, Tulsa, for defendants in error.

DAVISON, Justice.

By this suit, the plaintiffs, Ray A. Tower and numerous other owners of lots in an addition to Tulsa, Oklahoma, seek to perpetually enjoin the defendants, Mudd Realty Company, a corporation, and Vernon L. Mudd, from constructing the necessary facilities for, and from opening and operating an automobile parking lot on a certain tract or parcel of land in said addition. The parties will be referred to as they appeared in the trial court.

The plaintiffs were owners and occupants of various lots in a residential addition known as Bellaire Acres, Second Extension. The corporate defendant was the owner of a certain tract therein identified as Lots 1 to 8 inc. in Block 19. The gist of this litigation is stated in the following paragraph of plaintiffs' petition, to-wit:

'Contrary to the Dedication restrictions limiting Lots 1 to 8, inclusive in Block 19 in said Addition, to residential lots with single or multiple dwellings thereon, defendants at this time are in the process of levelling, grading and preparing said lots, and each of them, for the use thereof for public and private parking in connection with the shopping center immediately West of said lots, and threaten to and will, unless enjoined, prepare said lots and use the same for such public and private parking in violation of the said restrictions, thereby converting the said lots from residential purposes to which they are dedicated.' (The shopping center referred to had been built on lots designated for that purpose in the plat.)

The trial court denied the injunction and the plaintiffs have perfected this appeal. The primary question for our determination is whether or not the defendants' contemplated use of...