Wallace v. Clifton Land Co.

• Decision Date: 02 July 1915
• Docket Number: 14751
• Citation: 110 N.E. 940,92 Ohio St. 349
• Parties: Wallace Et Al. v. The Clifton Land Company
• Court: Ohio Supreme Court

110 N.E. 940

92 Ohio St. 349

Wallace Et Al. v. The Clifton Land Company

14751

Supreme Court of Ohio

July 2, 1915

Real property-Uniform restrictions in deeds-Injunction-Rights of individual or united lot owners-Power of eminent domain supersedes contract or covenant, when-Streets and alleys-Establishment by private proprietors-Public dedication and acceptance necessary, when.

1. Where uniform restrictions are imposed, according to a general

plan of allotment, upon all the lots therein, the owner of the allotment covenanting in the deed of Conveyance of each separate lot that all sales or leases of other lots in that allotment, similarly located, shall be sold or leased subject to such restrictions, an owner of any lot or lots in such addition may maintain an action to enjoin the owner of any other lot or lots in that allotment from using the same for purposes other than the uses to which they are restricted.

2. The owners of other lots in that allotment, or any number

of them may unite in an action against any lot owner, to enforce by injunction the restrictive covenants written into each deed in pursuance of the general plan of allotment.

3. No contract or covenant in a deed restricting the real estate

conveyed to certain uses and prohibiting other uses thereof, will operate to prevent the state or any body politic or corporate, having the authority to exercise the right of eminent domain, from appropriating such property to public use.

On the 23d day of May, 1914, plaintiffs in error filed a petition in common pleas court of Cuyahoga county, averring that they were owners of lots in what is known as the Clifton Park Addition to the city of Lakewood; that this addition consists of about ninety acres, subdivided into two hundred and twenty-nine lots, all devoted exclusively to residence purposes; that the allotment was laid out by The Clifton Park Land & Improvement Company according to a general plan whereby uniform restrictions were imposed upon the lots thereafter sold, such restrictions running for a period of fifty years from the date of the respective deeds, it being specially covenanted by the land company in each deed "that all sales or leases of lots in such allotment similarly located, should be made subject to like restrictions as to the use of the same."

Plaintiffs further aver that the defendant in error has acquired title to sublots 189, 209 and parts of sublots 188 and 190 through mesne conveyances from the grantees of the original proprietors of this subdivision, and that defendant proposes to devote these lots or part thereof to road and street purposes, and pray for an injunction restraining it from making any other or different use of said lots than as provided in the original deed therefor from The Clifton Land & Improvement Company.

The defendant for answer admits that it proposes and intends to locate certain streets on the lots described in the petition avers some streets are now located on a portion of said premises, formerly owned by said Clifton Park Land &amp Improvement Company, and that said streets are partially graded and sidewalks laid and are open for general use; denies that plaintiffs have any interest in or right to any portion of the premises described in the petition and asks that petition of plaintiffs be dismissed and that plaintiffs may be enjoined from further interfering in any manner with the defendant in its use and occupation of said premises.

The cause was tried in the common pleas court, which court granted a perpetual injunction against the defendant, restraining it from using any lots described in plaintiffs' petition for road or street purposes.

An appeal was taken to the court of appeals, and that court, on the evidence submitted, made the following finding of fact:

"That in or about the year 1900, The Clifton Park Land &amp Improvement Company laid out and allotted for residence purposes a considerable tract of land known as 'Clifton Park' within the limits of what is now the city of Lakewood, Cuyahoga county, bounded by Lake Erie on the north, by Rocky river on the west and on the south by the tracks of the New York, Chicago & St. Louis Railroad Company, except as hereinafter shown, a substantial copy of said plat is hereto attached and marked 'Exhibit A.' In 1904 a plat of a portion of said property was offered and the streets as thereon shown dedicated to the then hamlet of Lakewood which was approved and the streets accepted, a copy of which plat is hereto annexed and marked 'Exhibit B.' That the general plan of said allotment adopted by said company provided for the opening of certain roadways or streets, excepting a part of certain low lands bordering on Rocky river and Lake Erie and certain other lots, paths and roads to be thereafter used and enjoyed by lot owners in Clifton Park in common; that said plan also provided for the restriction of all sublots in said allotment to use for residence purposes only and that the same should not be used for any business purpose, or any intoxicating liquors sold or exposed for sale thereon; it also provided that no building should be placed upon any lot nearer than ten feet to either of the side lines of said lot without the consent of the adjoining owners, nor within a given distance from the street lines, nor that any house to be built upon any sublot should cost less than a certain fixed sum. The Clifton Park Land & Improvement Company also held out to purchasers of lots, that similar restrictions would be placed in all sales or leases of lots similarly situated thereafter made. None of said restrictions were applicable to or Intended to apply to said Block C, except the restrictions against business uses and the sale of liquor. On April 11th, 1913, a deed to sublot No. 209 in said allotment was executed by The Clifton Park Land & Improvement Company to one J. M. Shallenberger, which deed contained the following restriction:

"'In accepting this conveyance and as a part of the consideration therefor, the Grantee, for himself and his heirs and assigns covenants with the Grantor that the said Grantee, his heirs and assigns will not sell or allow to be sold on either of said sublots any liquor, whether spirituous, vinous or fermented, or use either of said sublots or cause or permit the same to be used for any business pur- poses whatsoever or for any other purposes than that of a private residence, or erect on either of said sub-lots any apartment house, tenement or other building to be occupied by more than one family, or erect, maintain or use or permit on said premises a carriage house, stable or other outbuilding except an automobile house without the written consent of the Grantor, nor in any case nearer than 60 feet to the street or avenue on which said lots front, nor (except by agreement with the owner of the adjoining lot) nearer than 10 feet to either of the side lines of either of said lots; that no house shall be erected on either of said sublots which shall cost less than $5000.00; that no house shall be erected on said sublot No. 209 which shall be located nearer than 40 feet to the street or avenue on which the same fronts or nearer than 10 feet to either of the side lines of said lot; that no house shall be erected on said sublot...