Town of Stamford v. Vuono

Decision Date28 September 1928
Citation143 A. 245,108 Conn. 359
CourtConnecticut Supreme Court
PartiesTOWN OF STAMFORD v. VUONO.

Appeal from Superior Court, Fairfield County; John Richards Booth and Allyn L. Brown, Judges.

Proceedings by the Town of Stamford against Mary C. Vuono for the taking of land for the purpose of a high school. From a judgment accepting the report of a committee awarding damages to the defendant, plaintiff appeals. Error, and cause remanded.

Thomas J. Ryle, of Stamford, for appellant.

Justus J. Fennel and George Dimenstein, both of Stamford, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HINMAN, BANKS, and BOOTH JJ.

BANKS J.

The defendant is the owner of land with a dwelling thereon which adjoins a tract of land upon which the plaintiff is building a high school. The defendant claimed an interest in a portion of the land upon which the high school was to be built, by virtue of certain restrictions created in deeds of the common grantor of both pieces of land, and the plaintiff brought this application asking for the appointment of a committee to ascertain the value of the defendant's claimed interest. The plaintiff filed a remonstrance to the report of the committee, to which the defendant demurred; the court sustained the demurrer, accepted the committee's report and rendered judgment in favor of the defendant to recover $13,715.

One of the grounds of remonstrance to the acceptance of the report is that it does not contain facts which it is claimed are material and were admitted or undisputed. The report states that the defendant's deed contains covenants similar to those contained in deeds to plaintiff's predecessors in title of a portion of its land. This is true as to the nature of the covenants restricting in each case the use of the property conveyed, but the defendant's deed does not contain reciprocal covenants restricting the use of the property of her grantor such as are contained in the deeds of the property now owned by the plaintiff. Since the absence of such reciprocal covenants in defendant's deed is material in connection with the restrictions claimed to exist upon the use of a portion of plaintiff's property, we shall treat the report as though it expressly set forth all of the restrictive covenants in defendant's deed. In so far as the facts set up in the remonstrance were claimed to show a change in the neighborhood making it inequitable to enforce the restrictions, they can be of no avail in view of the finding of the committee, not attacked in the remonstrance, that, despite a trend in the neighborhood toward smaller residences and the subdivision of a number of larger estates into smaller building lots, the vicinity of the defendant's house is still definitely a residential section. Other facts which the plaintiff claims should have been included in the report are either immaterial or evidential merely, and their inclusion in the report would not have affected the committee's finding of ultimate facts.

The remonstrance also alleged that the report did not contain certain rulings of the committee admitting evidence of the market value of the defendant's house, which was objected to upon the ground that the land upon which the high school is built was not subject to any restrictions in favor of the defendant. This was the fundamental question in the case which was raised in another portion of the remonstrance and there ruled upon by the court, so that the plaintiff was not harmed by the omission of these rulings from the report of the committee.

The plaintiff is not taking any of the land of the defendant in this proceeding. The land upon which its high school is built includes three lots which are adjacent to the defendant's land, and it is the contention of the defendant that these lots are subject to certain building restrictions in favor of her property which are violated by the erection of a high school thereon. The plaintiff contends, first, that no such restrictions upon these three lots exist in favor of the defendant's property; and, second, that, if such restrictions obtained, they are void as against public policy in so far as they prohibited the erection of a high school or other municipal building upon the restricted property.

The following facts appear from the report of the committee: The plaintiff's high school is located in part upon land which, together with the land of the defendant, was formerly part of a single tract of land, containing about ten acres, owned by one Betts. The defendant's land lies north of the high school site, being separated from it by a private road formerly a part of the ten-acre tract. The land immediately south of the private road, which is not a part of the high school site, was divided by Betts into three lots shown upon the map, Defendant's Exhibit 1, as tracts A, B, and C. Betts transferred tract A to one Thamer and tract B to one Metcalf. The deed to Thamer recited that it was given and accepted upon certain " restrictive covenants and agreements which shall run with the land and be binding upon the grantee, his heirs and assigns forever," among which were covenants that the premises should be used for residential purposes only and that no more than one single family private residence with outbuildings should be constructed on the premises conveyed. The deed to Metcalf contained similar restrictive covenants with a recital that they should run with the land and be binding upon the grantor and the grantee and their respective heirs and assigns. The deeds from Betts to Thamer and Metcalf both contained reciprocal covenants restricting the remaining land of the grantor to residential purposes; the restrictions being similar to those imposed upon the land conveyed in those deeds. Subsequently Betts conveyed to the defendant the land north of tracts A, B, and C, and separated from them by the private road. The defendant's deed contained covenants similar to those in the Thamer and Metcalf deeds restricting the use of the premises conveyed to residential purposes, but did not contain any covenants similar to those in the Thamer and Metcalf deeds restricting the use of the remaining land of the grantor in favor of the land conveyed to the defendant. Thereafter Betts conveyed tract C to the plaintiff without restrictions, but excepting from his warranty any rights to the enforcement of restrictive covenants which the defendant may have acquired by virtue of his deed to her, and Thamer and Metcalf conveyed tracts A and B to the plaintiff by deeds containing similar exceptions and without restrictions.

The plaintiff challenges the right of the defendant to enforce any restrictions upon the use of tracts A, B, and C. Its contention is that there is here no general development scheme or plan, and therefore no mutuality of covenant between the defendant and Thamer and Metcalf, the grantees in the deeds containing restrictions upon tracts A and B, and no reciprocal covenants in the defendant's deed from Betts restricting his remaining land which included tract C. For our present purposes restrictive covenants of this character may be divided into three general classes: First, when there are mutual covenants between owners of adjoining lands; second, when under a general development scheme the owner of property divides it up into building lots to be sold under deeds containing uniform restrictions; and third, where a grantor exacts covenants from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains. Korn v. Campbell, 192 N.Y. 490, 495, 85 N.E. 687, 37 L.R.A. (N. S.) 1, 127 Am.St.Rep. 925. In the first class either party or his assigns may enforce the restriction because there is a mutuality of covenant and the rights are reciprocal. Trustees of Columbia College v. Lynch, 70 N.Y. 440, 26 Am.Rep. 615. In the second class, upon the same theory of mutuality of covenant and consideration, any grantee may enforce the restrictions against any other grantee. De Gray v. Monmouth Beach Club House Co., 50 N.J. Eq. 340, 24 A. 388. In the third class, there is no mutuality between the grantees, if there are more than one, and therefore no right in one grantee to enforce the restrictions against another grantee upon that theory. But the original grantor (the owner of the property benefited) and his assigns may enforce them against subsequent purchasers of the property burdened. If the restrictive covenant is for the benefit of the remaining land of the grantor, it is an easement running with the land, and may be enforced by a subsequent purchaser of the remaining land against the prior grantee and his successors in title upon the principle which prevents one having knowledge of the just rights of others from defeating such rights. Baker v. Lunde, 96 Conn. 530, 114 A. 673; Bauby v. Krasow, 107 Conn. 109, 112, 139 A. 508; Whitney v. Union Ry., 11 Gray (77 Mass.) 359, 364, 71 Am.Dec. 715; Tulk v. Moay, 2 Phil. Ch. 774; 2 Pom. Eq. Jur. (4th Ed.) § 689; Berry on Restrictions on the Use of Real Property, 417; 1 Jones on Law of Real Property in Conveyancing, § 780; 2 Tiffany on Real Property (2d Ed.) § 394; note in 21 Am.St.Rep. 484.

The restrictions here under consideration fall under the third class. Those upon tracts A and B were created in the deeds from Betts to Thamer and Metcalf obviously for the benefit of the remainder of the tenacre tract then retained by him. The defendant, as a subsequent purchaser of a portion of the remaining land, acquired as an easement running with the land the right to enforce the restrictions upon these two tracts not only against Thamer and Metcalf, but against the plaintiff, their successor in title, with knowledge of the existence of the restrictions. Her...

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