Turner v. Brocato

Decision Date21 February 1955
Docket NumberNo. 73,73
Citation206 Md. 336,111 A.2d 855
PartiesCharles T. TURNER et al. v. Ralph J. BROCATO et al.
CourtMaryland Court of Appeals

Charles G. Page, Baltimore (H. Warren Buckler, Jr., and R. Taylor McLean, Baltimore, on the brief), for appellants.

Charles C. W. Atwater and Walter C. Mylander, Jr., Baltimore (Samuel M. Campanaro, Baltimore, on the brief), for Brocato & Raymond, etc.

Thomas N. Biddison, City Sol., Edwin Harlan, Deputy City Sol., and John R. Cicero, Asst. City Sol., Baltimore, on the brief for Mayor & City Council, etc.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The bill of complaint in this case was brought by the appellants, owners of homes in a residential development in the northern suburbs of Baltimore, whose lots were subject to restrictions against use for business, to obtain a declaration that the lot of the appellees was part of the development and, as such, similarly restricted, although it had been deeded by the developer free of restrictions. Right to relief was based on the claim that the developer, either expressly by deed, or by necessary implication from a course of conduct under the general plan of development, or both, had promised that all of the land retained by him was, and must continue to be, burdened by the same restrictions he had imposed on each lot as he had conveyed it and that in equity those who had become grantees with notice that the promise applied to their grants, were bound by it at the suit of one similarly bound. The chancellor held that the appellants had not met the burden of showing the restrictions which the developer had placed on their lots were for the common benefit and advantage of all those who had bought from him, rather than being personal to him, and that, consequently, he could, if he so desired, convey free of restrictions, any part of the tract which he had retained. The appeal is from the dismissal of the bill.

The facts are not in real dispute, although the inference to be drawn from them and the results which follow are: In 1927, Charles G. Fenwick bought a tract of land of some forty-seven acres near the northern limits of Baltimore, bounded on the east by Roland Park, on the west by Falls Road, and on the south by land owned by the Penniman family. The land rises sharply from Falls Road toward Roland Ave. and is divided by Bellemore Road, running east and west between those two thoroughfares. Fenwick bought the land, which he called Poplar Hill, to resell as building sites for expensive residences. He caused to be prepared a plat of the whole tract, designated the Sutton-Britcher plat and dated August 24, 1927. On it was drawn a line roughly parallel to and about three hundred seventy feet east of Falls Road. Seventy-five numbered lots were laid out to the east of this line, thirty-eight comprising Section A and thirty-seven, Section B. The remaining land, to the west of these sections and to the east of Falls Road, was designated as Section C. This was not then subdivided into lots. On August 31, 1927, Fenwick sold his first lot, one in Section A. The deed imposed on the lot what came to be known as Poplar Hill restrictions. With three exceptions, every lot in the entire tract was sold subject to the same restrictions, running in each case, fifty years from the date of the conveyance. Fenwick covenanted in the first deed that the restrictions in it should apply to all lots in Section A 'but shall not apply to the other remaining property belonging to the party of the first part'. A few days later, a second lot was sold in Section B; in the deed the same restrictions were imposed on the grantee and the grantor promised that they applied to all lots in Section B. It was repeated that they did not apply to his remaining land. In July, 1929, Fenwick sold the first lot in Section C, lot seventy-eight, which is owned now by an appellant and is next to the lot in dispute. In the deed, the restrictions which had been imposed on lots in Sections A and B were incorporated by reference. From then on, all of Poplar Hill was in course of active development. A revision of the Sutton-Britcher plat was prepared, dated February 10, 1930, on which was the legend 'This plat supersedes plat dated August 24, 1927'. The revision showed no division into sections but on it were added, to the seventy-five numbered lots in what had been Sections A and B, twelve additional lots in what had been designated Section C, numbered seventy-seven to eighty-eight. It was not recorded but a number of recorded deeds in Section C, and elsewhere, in Poplar Hill refer to it. A reproduction of the revised plat, on which were drawn lines indicating a right-of-way, was incorporated in a deed from Fenwick to Baltimore City, granting a right-of-way for sewers. That recorded plat bears the legend 'See plat of Poplar Hill dated February 10, 1930'.

Unnumbered on the revised Sutton-Britcher plat was a finger of land on the southeast corner of Falls Road and Bellemore Road, running some five hundred feet along Falls Road south of Bellemore Road, with a depth of approximately one hundred feet. It, like the rest of Section C, had been unnumbered on the first plat. A part of this finger of land is the subject of this controversy. The northern one hundred fifty feet of it is the land owned by the appellees, acquired by them in 1953 from one Bushman, who had acquired it from Fenwick without restrictions and, in turn, had so conveyed it. The appellees' land is contiguous on the east to lot seventy-eight, the first lot sold in Section C. To the south of appellees' lot, Fenwick still owns frontage of one hundred eighty-five feet on Falls Road. Still further to the south along Falls Road is the remainder of the original finger of land, which is now owned by a man named Somers, who purchased it from Fenwick free of restrictions. He uses forty feet of it next to his store, which adjoins it to the south, as a parking space for customers. The residents of Poplar Hill were not aware that the land Somers bought was in the development and, because of its location and topography, feel that its use will not harm them.

Fenwick stopped referring to sections and remaining land early in the development. The first deed which omitted these references was in October, 1929. From then until now, only two deeds out of fifty-eight have mentioned sections or remaining land of the grantor. These were in 1931. Sometimes the same such deed conveyed a lot in Section C and lots in other sections, with the same restrictions binding each. It is agreed that all of the lots in what were originally Sections A and B are restricted. All of the lots in Section C were conveyed subject to restrictions, except lot eighty-six, and the Somers lot, and the lot of the appellees. Unexplained is the exception of lot eighty-six. Its owners, who are appellants, agree it is bound to the same extent as all other lots in the development.

The western gateway to Poplar Hill, where Bellemore Road meets Falls Road, is between the house which was on the tract when Fenwick bought it, the so-called gatehouse on lot eighty-eight, on the north, and the appellees' lot, on the south. Just about the time Fenwick started to open up the lots in Section C in 1929, a large sign was hung on the appellees' lot just across from the gatehouse, which had been the second lot sold in Section C. It stated in conspicuous letters: 'Poplar Hill--A Restricted Residential Development--Albert P. Strobel, Jr. Co., Agents'. Such a sign remained there continuously for some twenty years, until March, 1950. From 1930 on, Strobel has been the exclusive sales agent for Poplar Hill. Almost everyone who was interested in, and all who bought in Poplar Hill, were given a sales plat identical with the revised Sutton-Britcher plat, showing the division of the development into lots numbered one to eighty-eight, with no reference to sections. The standard phrase 'subject to Poplar Hill restrictions' was included in all contracts of sale. In additions, Strobel prepared separate lists of restrictions, which did not mention sections or the remaining land of the grantor, and these were distributed to those interested in purchasing lots and to those who did purchase. At the trial, appellees conceded on the record that the lot owners of Poplar Hill, largely those in Section C, who were in the courtroom as witnesses, would testify that they had bought their properties in reliance upon the restrictions being applicable to Poplar Hill, that they had built expensive properties on their lots and that they regard them as now being covered by the restrictions. Strobel testified that the restrictions were a selling point, that the majority of the buyers would not have bought in a high class, residential development like Poplar Hill without such restrictions. A member of the bar, one of the appellants, took the stand. He testified that he bought his first lot in 1937, in what was originally Section C, and on cross-examination said: '* * * my very firm recollection was at the time the restrictions applied to the entire Poplar Hill development. * * * When I acquired the properties, it was my impression at the time, and it is still my impression and my understanding, that the restrictions applied to the entire development of which I was supplied a copy of the plat, subject only to the right of Dr. Fenwick, the developer, to waive certain of those restrictions * * *. That was certainly my understanding, yes. I would not have accepted the restrictions if I had not believed that they were going to apply to everybody.'

Poplar Hill restrictions were divided into two classes: those relating to front yard measurements, walls, open spaces, and approval of plans by an architect, comprised one class; the other group forbade the maintenance or operation of a mumber of specified noxious or offensive trades or businesses on...

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