Varney v. Fletcher
| Decision Date | 29 October 1965 |
| Citation | 106 N.H. 464,213 A.2d 905 |
| Parties | Frank R. VARNEY v. Melmon FLETCHER et al. |
| Court | New Hampshire Supreme Court |
After a hearing, the Court (Morris, J.) granted the injunction sought by the plaintiff.
The defendants' exceptions to the admission and exclusion of evidence; to the denial of certain requests for findings and rulings; and to the denial of their motion to set aside the findings, rulings, and decree of the Trial Court were transferred.
James W. Doherty, Laconia, and David R. Decker, for plaintiff.
Normandin, McIntyre, Cheney & O'Neil, Laconia (F. A. Normandin, Laconia, orally), for defendants.
In July 1950, Frank R. Varney, a real estate developer, bought a large tract of land adjacent to the boundary line of Gilford and Laconia. It was then a milk farm, the Collins Farm, on which was located a very large colonial type house with three apartments on the second floor, and a large barn across the street from the house. There were no restrictions on the use of the land or the buildings.
Plaintiff moved into the downstairs of the house and started developing the property, renamed Collins Heights Development. He first laid out a block of 18 lots, in 1950, which later was extended to cover 37 lots, as shown on a plan entitled 'Collins Heights Section 1 Gilford N. H. * * * March 1952, N. McCrillis Sur.'. Thereafter by additional layouts and plans the naumber of lots in Collins Heights was increased to about 100.
The defendants own Lots #5 and #6 which were included in the first layout of Section I in 1950 and in its extended layout in 1952. These lots were conveyed by the plaintiff to Perron in July 1951, and, after building a house thereon, by him to the defendants in October 1951. Plaintiff's conveyance to Perron contained certain restrictions which were incorporated by reference in Perron's deed to the Fletchers. These restrictions were binding on the grantees, their heirs and assigns until October 1, 1960, and were to be extended automatically for additional ten year periods, unless amended, altered or terminated, on October 1, 1960 or at the end of any succeeding 10 year period, by a majority of the then owners of the lots subject to the restrictions. All the lots conveyed by Varney contained these restrictions.
The restriction most material to these proceedings reads as follows:
'Each lot laid out in the above mentioned plan shall be used for residential purposes only, and no portion of the land and buildings placed thereon shall be used in the exercise of any trade, business or profession whatsoever, except by written approval of the grantor, his heirs, administrators or assigns'.
For about 6 or 8 years prior to August 1962, defendant Thelma Fletcher operated a four chair beauty parlor on Canal Street in Laconia. She closed this establishment in August 1962 and two of these chairs were set up in the Fletcher home in Collins Heights. While operating in her residence, Thelma took in a low of $30 and a high of $100 per week. She testified that she never had over six customers in the shop at one time. Plaintiff Varney testified that when he found out that Thelma was operating a beauty parlor in her home he 'not long afterwards' instructed his attorney to 'put an injunction on it'.
The Trial Court found on all the evidence, 'that the defendants are violating the restrictions contained in the deed to their premises by operating a beauty salon and the requested injunctive relief would be equitable in view of all the circumstances'.
. Bouley v. City of Nashua, 106 N.H. 74, 77-78, 205 A.2d 34, 36; SunValley Beach v. Watts, 98 N.H. 428, 431, 102 A.2d 504; Nashua Hospital Ass'n v. Gage, 85 N.H. 335, 339-340, 159 A. 137.
There was evidence that the plaintiff, whose principal business is real estate development, purchased this farm in 1950 and immediately started to develop it as Collins Heights. About 100 lots were laid out on a series of plans recorded in the Belknap County Registry of Deeds and all but the 15 or 18 lots still owned by Varney have been conveyed with the same restrictions found in defendants' deed. By their terms, these restrictions show that Varney intended that no building or structure 'other than a single family dwelling' with 'at least eight hundred square feet of floor space on its first floor' and a 'private garage' were to be erected in the Collins Heights Development. These lots were to be used 'for residential purposes only, and no portion of the land and buildings placed thereon was to be used in the exercise of any trade, business or profession whatsoever', except by Varney's written approval. The grantees had 'the right to restrain through Court proceedings any infraction or threatened infraction of any of the above restrictions'. Varney testified that the restrictions were 'for the benefit of the whole property', that on which he lives as well as the rest of it.
Plaintiff also testified that he has never given 'any variance of any kind on any of the Collins Heights property' except for permission granted to a doctor residing therein to see a patient in her home 'if it was an emergency'. He testified that there has never been any change or agreement for a change in the restrictions. When asked for a variance by Thelma Fletcher, 'I told her that I could not' grant her one.
On this evidence the Trial Court could properly find 'from the language of the instruments, the conduct of the parties, and the surrounding circumstances', the adoption by Varney of a general scheme for the development of this parcel of land and an intent that uniform restrictions be imposed on each lot conveyed for the benefit of all other lots in the general plan including plaintiff's remaining land. Bouley v. City of Nashua, 106 N.H. 74, 76-77, 205 A.2d 34. This created in the benefited land an equitable property interest in the burdened lots similar to an easement. Nashua Hospital Ass'n v. Gage, 85 N.H. 335, 339, 159 A. 137; II American Law of Property, s. 9.24, p. 420; 5 Powell, Real Property s. 671, p. 145. Any interference with this property interest by a violation of the imposed restriction can be enjoined. Hatch v. Hillsgrove, 83 N.H. 91, 94, 138 A. 428, 139 A. 366; 3 Tiffany, Real Property, s. 861, p. 489; 20 Am.Jur.2d, Covenants, Conditions, and Restrictions, s. 313, p. 879; Restatement, Property, s. 528, comment e.; 43 C.J.S. Injunctions § 87b(4)(c), p. 585; II American Law of Property, s. 9.24, p. 401.
The granting of an injunction, however, is a matter within the sound discretion of the court exercised upon a consideration of all the circumstances of each case and controlled by established principles of equity. Johnson v. Shaw, 101 N.H. 182, 189, 137 A.2d 399; 4 Pomeroy, Equity Jurisprudence, (5th ed.) s. 1404, p. 1040. It is...
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Burke v. Pierro, 2008-750.
...lead to the conclusion that he intended thereby to have the restrictions apply to his remaining land."); cf. Varney v. Fletcher, 106 N.H. 464, 466-67, 213 A.2d 905 (1965) (implying an equitable servitude where 100 lots were laid out on a series of recorded plans and all but the fifteen or e......
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Burke v. Pierro
...lead to the conclusion that he intended thereby to have the restrictions apply to his remaining land."); cf. Varney v. Fletcher, 106 N.H. 464, 466–67, 213 A.2d 905 (1965) (implying an equitable servitude where 100 lots were laid out on a series of recorded plans and all but the fifteen or e......
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Fournier v. Kattar
...land, one would naturally expect that it would have been expressed rather than left to dubious inference'.' See also Varney v. Fletcher, 106 N.H. 464, 468, 213 A.2d 905. Since no such agreement restricting the developer himself to residential use was expressed in the deeds, and since the Co......
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Unifirst Corp. v. City of Nashua, 86-385
...established principles of equity." Gauthier v. Robinson, 122 N.H. 365, 368, 444 A.2d 564, 566 (1982) (quoting Varney v. Fletcher, 106 N.H. 464, 467-68, 213 A.2d 905, 908 (1965)). We will uphold the decision of the trial court with regard to the issuance of an injunction absent an error of l......