Van Meter v. Manion, Case Number: 24871

• Decision Date: 30 October 1934
• Docket Number: Case Number: 24871
• Citation: 1934 OK 615,38 P.2d 557,170 Okla. 81
• Parties: VAN METER v. MANION.
• Court: Oklahoma Supreme Court

1934 OK 615

38 P.2d 557

170 Okla. 81

VAN METER v. MANION.

Case Number: 24871

Supreme Court of Oklahoma

Decided: October 30, 1934

Syllabus

¶0 1. Covenants--Addition to City Restricted to Use for Residential Purposes--Judgment Ordering Permit to Issue to Erect Business Building on Restricted Lot on Account of Change of Conditions in Neighborhood Held Contrary to Clear Weight of Evidence.

Plaintiff was the owner of a corner lot in an addition to Oklahoma City restricted by a plat restriction to use for residential purposes only. A judgment of the trial court ordering that a permit issue to erect a business building on said lot on account of a change of conditions in the neighborhood surrounding said restricted area is contrary to the clear weight of the evidence where it is shown that there was no purpose or plan on the part of the residents of the restricted area to abandon the original scheme or purpose of creating an exclusive residential section, and where the evidence as to a change of conditions is not sufficient to show that the original purpose cannot now be accomplished, and where it is shown that substantial benefits still inure to the residents of the restricted area by the enforcement of the restrictions.

2. Same--Increased Traffic on Surrounding Streets not Sufficient Ground for Releasing Lot From Restrictive Covenant.

The fact that traffic has increased on streets surrounding a restricted area may be considered as evidence showing a change of conditions, but is not sufficient to warrant the releasing of affected property from a restrictive covenant.

3. Same--Fact That Lot Is More Valuable for Business Purposes not Sufficient Ground for Breach of Restrictions.

The lot of plaintiff cannot be considered separate and apart from its relation to the entire restricted addition. The fact that plaintiff's lot is more valuable for business purposes than residential purposes is not sufficient to warrant a breach of the restrictions.

Appeal from District Court, Oklahoma County; W. G. Long, Judge.

Action by Harry Lee Manion against J. W. Van Meter, Building Commissioner of Oklahoma City. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Everest, McKenzie, Halley & Gibbens, for protestants.

Harlan T. Deupree, Municipal Counselor, for J. W. Van Meter.

O. A. Cargill and W. R. Graalman, for defendant in error.

OSBORN, J.

¶1 This is an appeal by J. W. Van Meter, as building commissioner of Oklahoma City, hereinafter referred to as defendant, from a judgment of the district court of Oklahoma county ordering the granting of a building permit to Harry Lee Manion, hereinafter referred to as plaintiff.

¶2 Plaintiff is the owner of the following described property: Lot 10 and the west 11.7 feet of lot 9, block 12, Winans Highland Terrace addition to Oklahoma City, Okla.

¶3 It appears that there is a frame structure on said lot in use as a dwelling house. Application was made to the building commissioner for permission to build a brick retail business building on said lot. On June 26, 1932, the permit was denied and defendant perfected an appeal to the board of adjustment of Oklahoma City. Due notice was given and a protest signed by 23 property owners in the affected area was filed. Other protests of interested parties were also filed. After a hearing the board of adjustment also denied the application for a permit, for the reason that there was a plat restriction against the carrying on of any business or merchandising on the property in question. Included in the order of the board was a finding that, due to the development of certain property for business purposes within the immediate vicinity of plaintiff's property, and the increased traffic with the attendant noise and hazards thereby created, plaintiff's property had been rendered almost totally unfit for residence purposes, and is now suitable and useful for business purposes, and except for the plat restrictions against the use of the property for business purposes the permit would be granted. On account of the restrictions, the permit was refused.

¶4 Plaintiff then appealed to the district court of Oklahoma county, and after hearing, the court entered judgment setting aside the order of the board of adjustment and the building commissioner, and directed the building commissioner to grant the permit, provided the plans and specifications of the building complied with other city ordinances. From said judgment, defendant has appealed. No contention is made herein that the procedure here invoked is not a proper manner of presenting the determinative issue, and we shall give no consideration thereto.

¶5 It is agreed by the parties that the applicable portion of the plat restriction as affecting Winans Highland Terrace addition provides: "Upon none of said lots shall any business or merchandising or manufacturing be carried on. * * *"

¶6 Plaintiff's theory is stated in his brief as follows:

"Where the purpose of the restriction no longer exists, due, as in this case, to the general growth of a city, and due to a substantial change in the surrounding neighborhood and where the residential purposes, in so far as this plaintiff is concerned, can no longer be accomplished, and where if the restrictions should be rigidly enforced they cannot restore to this plaintiff the residential character of his property, the court will hold that a permit be granted and the restrictions be not enforced."

¶7 Some evidence was introduced which tended to show breaches of the restrictive covenant within the restricted area. Such violations were of minor importance, and since they are not seriously urged in the briefs, will be treated as waived. We therefore pass to a consideration of the change of conditions in the surrounding neighborhood.

¶8 Plaintiff's lot is on the corner, immediately southeast of the intersection of Northwest Twenty-Third street and North Walker avenue. It is shown that a rather extensive community center has been established in the block immediately north of plaintiff's property, consisting of drug stores, filling stations, restaurants, grocery stores, and other businesses; that immediately west of plaintiff's property is a small city park, 100 feet by 150 feet, and west of the park is a fire station; that there is a small apartment house on the northwest corner of block 12; that the traffic on Twenty-Third street and North Walker avenue has grown increasingly heavier, so that it has been necessary to install traffic lights and bells at the intersection. (Prior to the hearing on the motion for new trial, the bells were discontinued, and this fact was considered by the court in passing on the motion for new trial.)

¶9 Plaintiff testified that it had been increasingly difficult to rent his property for residence purposes. The witnesses generally agreed that plaintiff's property was more valuable for business purposes than for residence purposes.

¶10 It has been said that a restriction arising from a restrictive covenant is not an estate in land, as is a legal easement, but is purely a creature of equity arising out of contract. Welitoff v. Kohl (N. J.) 147 A. 390, 66 A. L. R. 1317. Cases of this nature are determined by the courts by weighing the equities of the parties, as they arise under contractual obligations and as they are affected by changing conditions and circumstances, either inside or outside of the restricted area.

¶11 In the case of Hurd v. Albert (Cal.) 3 P.2d 545, 76 A. L. R. 1348, quoting from Downs v. Kroeger, 200 Cal. 743, 254 P. 1101, it is said:

"The authorities unquestionably support the conclusion of the trial court in holding that, where there has been a change in the uses to which the property in the neighborhood is being put, so that such property is no longer residence property, it would be unjust, oppressive, and inequitable to give effect to the restrictions, if such change has resulted from causes other than their breach.

" It is evident that the purpose of the restrictions as a whole was to make the locality a suitable one for residences; and that, owing to the general growth of the city, and the present use of the whole neighborhood for business, this purpose can no longer be accomplished. If all the restrictions imposed in the deeds should be rigidly enforced, it would not restore to the locality its residential character, but would merely lessen the value of every lot for business purposes. It would be oppressive and inequitable to give effect to the restrictions; and, since the changed condition of the locality has resulted from other causes than their breach, to enforce them in this instance could have no other effect than to harass and injure the defendant, without effecting the purpose for which the restrictions were originally made. (Citing cases.)' Jackson v. Stevenson, 156 Mass. 496, 31 N.E. 691, 32 Am. St. Rep. 476.

" It certainly is not the doctrine of courts of equity to enforce, by its peculiar mandate, every contract, in all cases, even where specific execution is found to be its legal intention and effect. It gives or withholds such decree, according to its discretion, in view of the circumstances of the case, and the plaintiff's prayer for relief is not answered, where, under those circumstances, the relief he seeks would be inequitable. Peters v. Delaplaine, 49 N.Y. 362; Margraf v. Muir, 57 N.Y. 155; Matthews v. Terwilliger, 3 Barb. (N.Y.) 51; Radcliffe v. Warrington, 12 Ves. (Eng.) 331. If for any reason, therefore, not referable to the defendant, an enforcement of the covenant would defeat either of the ends contemplated by the parties, a court of equity might well refuse to interfere, or if in fact the condition of the property by which the premises are surrounded has been so altered "that the terms and restrictions" of the covenant are no longer applicable to the existing state of things. 1 Story's Eq. Jur. (10th Ed.) sec. 750. And so though the contract was fair and just when made,

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