Van Duyn v. H. S. Chase & Co.

• Decision Date: 16 November 1910
• Citation: 128 N.W. 300,149 Iowa 222
• Court: Iowa Supreme Court
• Parties: VAN DUYN v. H. S. CHASE & CO., INC., ET AL.

149 Iowa 222

128 N.W. 300

VAN DUYN

v.H. S. CHASE & CO., INC., ET AL.

Supreme Court of Iowa.

Nov. 16, 1910.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action to enjoin the construction of a store building because of certain restrictions in a deed. On hearing the petition was dismissed. Plaintiff and intervener appeal. Affirmed.C. J. Eller and L. M. Bechtell, for appellants.

J. K. Macomber, Schenk & Berryhill, and J. C. Shoemaker, for appellees.

LADD, J.

The plaintiff acquired lot 1, Kauffman Place, division 1, Wessex, now in Des Moines, from the Elmwood United Presbyterian Church by deed containing these restrictions: “First. The front of the residence or residences built upon the said property shall not be less than forty feet (40) west of the east line of the said lot. Second. No other building except a residence shall be built on the front half of said lot.” It also stipulated that the grantor might enforce these, and that they should run with the land and be binding on all subsequent purchasers. Subsequently plaintiff conveyed the west 40 feet of the north half of the lot to one Macomber, and the latter thereafter transferred this to Given Chase; each conveyance being subject to the above restrictions. Given Chase, with H. S. Chase & Co., was about to erect a brick building thereon for use as a grocery, when this action to enjoin them from so doing was begun. The church, in a petition of intervention, demanded like relief. The lot conveyed by the church to plaintiff is a corner lot, fronting 100 feet on Thirty-Fifth street and 148 feet deep along University avenue, and abutting the ends of two lots of like depth fronting on Thirty-Sixth street. The block is 607 feet long, extending to Cottage Grove avenue, with all lots fronting on Thirty-Fifth and Thirty-Sixth streets.

That the lot conveyed by the church to plaintiff fronted on Thirty-Fifth street is not questioned, and under the restrictive clauses two things were exacted: (1) The front of a residence built thereon should not be constructed within 40 feet of the street line; and (2) no building other than a residence should be erected on the front half of said lot--that is, on the east 74 feet of it. Concerning the back half of the lot the deed contains no restrictions. But appellant contends that, as defendants took the west 40 feet of the north half of said lot “subject to certain building restrictions in a deed executed by the trustees” of the church, this imposed the restrictions on this tract, so that no dwelling house might be erected within 40 feet of the street line of University avenue, leaving a strip 10 feet wide and 40 feet long on which one might be placed, and no building other than a dwelling might be constructed on the front half of it. Should this theory be adopted, to what use might the premises be devoted? Such a construction is not warranted by the...