Wallace v. St. Clair

• Decision Date: 10 December 1962
• Docket Number: No. 12165,12165
• Citation: 127 S.E.2d 742,147 W.Va. 377
• Parties: George S. WALLACE et al. v. James W. ST. CLAIR et al.
• Court: West Virginia Supreme Court

Page 742

127 S.E.2d 742

147 W.Va. 377

George S. WALLACE et al. v. James W. ST. CLAIR et al.

No. 12165.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 19, 1962.

Decided Oct. 30, 1962.

Rehearing Denied Dec. 10, 1962.

Syllabus by the Court

1. Where the owner of land divides it into lots in pursuance of a general plan for the development of an exclusively residential area and conveys the several lots to different grantees by deeds containing identical or substantially similar covenants restricting the use of the lots to residential purposes, an action in the nature of a suit in equity may be maintained by an owner of one of such lots against the owner or owners of any other lot to compel compliance with the restriction.

2. Where each lot in and area developed exclusively for residential purposes is bound by a restrictive covenant which states that only 'one dwelling and that a single dwelling' may be erected on each lot and that the dwelling may not be used 'other than for dwelling or residence purposes, or purposes of like nature,' the word 'dwelling' and the words 'single dwelling' refer not only to the type of building but also to the permissible use thereof; and the restrictive covenant is violated by owners who keep eight roomers for compensation in the dwelling previously erected on their lot.

3. Where the owner of land divides it into lots in pursuance of a general plan for the development of an exclusively residential area and conveys the several lots to different grantees by deeds containing identical or substantially similar covenants restricting the use of the lots to residential purposes, such restriction must be construed, in the light of the surrounding circumstances and the obvious purpose sought to be achieved, so as to ascertain the true intent thereof as expressed in the language employed. Such restriction is valid, not violative of public good, inimical to the public policy or subversive of public interests. The resulting right of the owner of each lot to enforce the restriction against the owner of every other lot is a substantial and valuable right, and the owner of any lot should not be denied the right to enforce such restriction by estoppel, waiver or abandonment unless upon a clear showing and for cogent reasons.

4. The willingness of some lot owners in an area restricted to residential purposes to waive the benefit of the restriction does not preclude others from insisting upon its observance; nor is any lot owner precluded from insisting upon such observance because of his failure to complain of violations of the restriction by other property owners in a different portion of the restricted area, which were not consequential or, if consequential, did not materially and adversely affect him in the use and enjoyment of his own property.

5. 'An estoppel cannot be based upon an uncertain state of facts.' Point 2 Syllabus, Werner v. Hopkins, 117 W.Va. 727 .

6. 'The burden is on the asserter of an estoppel in pais, to prove his reliance on, and injury from, the representations or conduct of the one against whom the estoppel is claimed.' Point 2 Syllabus, Brotherhood Investment Co. v. McArthur, 110 W.Va. 326 .

Walter M. Parker, George S. Wallace, Jr., George S. Wallace Sr., Huntington, for appellants.

Edmund G. Marshall, Sam R. Harshbarger, Huntington, for appellees.

CALHOUN, President.

This case involves an action instituted in the Circuit Court of Cabell County by George S. Wallace, Charles M. Gohen, Margaret Magner Amsbary, Lauren B. Amsbary, Samuel Biern, Jr. and Ann A. Biern, who are referred to herein as plaintiffs, against James W. St. Clair and Doris A. St. Clair, husband and wife, who are referred to herein as defendants.

The purpose of the action is to enforce by injunction a restrictive covenant which is a part of the deed by which the defendants obtained title jointly to a lot and the dwelling situated thereon, fronting on Fifth Avenue, being on the northeast corner of Fifteenth Street and Fifth Avenue, in the City of Huntington.

Upon the trial before the court in lieu of a jury, the trial court adjudged: 'that the housing of eight unrelated female students with the family of the defendants is in violation of the single dwelling restrictions but that the plaintiffs are estopped from complaining for failure to object prior to the purchase of the proper by the defendants.' (Italics supplied.)

On appeal to this Court, the appellants assert that the trial court erred in holding that the plaintiffs were precluded by estoppel from obtaining the injunctive relief sought by them. The defendants, on the other hand, contend that they have not violated the restrictive covenant; that, in any event, the trial court correctly held that the plaintiffs are precluded by estoppel from obtaining the relief which they seek; that the covenant is unenforceable because the original grantor failed to make the restriction applicable to all the lots in the two-block area affected by the restriction; and that the restriction is unenforceable because the property owners in the two-block area have for several years permitted or acquiesced in various violations of the covenant on properties other than that owned by the parties to this action.

The appeal to this Court is prosecuted only by George S. Wallace, Samuel Biern, Jr. and Ann A. Biern. Witnesses for the plaintiffs were Samuel Biern, Jr., Lauren B. Amsbary and George S. Wallace. It appears from the record that Ann A. Biern, one of the plaintiffs, was absent from the state on the day of the trial and had at that time been absent from the state for approximately three weeks. It was suggested on the record that Charles M. Gohen, one of the plaintiffs, was prevented by ill health from appearing as a witness in behalf of the plaintiffs.

The two defendants were witnesses in their own behalf. The only additional witness for the defendants was Marjorie Ann Holley who testified in relation to the nature of the use made of the defendants' home by herself and the other roomers.

It was stipulated by the parties in the court that the defendants obtained the deed for their property on August 23, 1960, and that the deed is subject to a restrictive covenant which appeared in an earlier deed in the defendants' chain of title as follows:

'That there shall be no more than one dwelling and that a single dwelling erected on each 60 feet frontage of the said premises, and such dwelling shall front of Fifth Avenue.

'That there shall not be erected on said premises any building other than for dwelling or residence purposes or purposes of like nature, and the necessary and proper out-buildings pertaining thereto, nor shall any building erected thereon be used for other than dwelling or residence purposes, or purposes of like nature and as such out-buildings pertaining thereto.

'That there shall not be erected on said premises or permitted in any building to be erected thereon any livery, or sales stables, slaughter house, meat or fish market, cattle, sheep or swine yard, smith or tin shop, forge, furnace, steam engine, or any manufactory of nails or other commodities of iron, brass or other metals excepting precious metals, or any oil refinery or manufactory of gun powder or other combustible materials, glue, varnish, vitrol, ink or turpentine or for tanning, dressing or preparing skins, hides, or leather or any brewery, distillery or wholesale or retail liquor business, circus or exhibition of wild animals, cemetery or burying ground, or any pursuit, trade, business or occupation known in the law as a nuisance, or that may be properly regarded as such.

'And the said parties of the first part for themselves, their successors and assigns hereby covenant and agree to and with the said party of the second part as follows: That all the lots on both sides of Fifth Avenue in the two blocks between Fourteenth and Sixteenth Streets, sold or to be sold, shall be sold subject to the same covenants as herein contained. That all the covenants herein contained shall run with the land, and that the purchasers of every one of said lots, including the grantee herein, whether purchasing before or after this conveyance, their grantees and assigns, shall be entitled to enforce as against each and every of the purchasers of the others of said lots, including this grantee, their grantees and assigns and all subsequent grantees and assigns, the covenants herein contained.'

The defendants took possession of the property shortly after August 6, the date of the purchase agreement, and moved into the dwelling on or about 18, 1960. It was further stipulated that about the middle of September, 1960, after the opening of the fall semester at Marshall College (now Marshall University), 'the defendants accepted female students as roomers in the premises, renting four of the extra bedrooms not occupied by the family to eight female students, making two students to each bedroom for which the defendants were paid compensation.'

James W. St. Clair and Doris A. St. Clair, defendants, testified that on Sunday, July 30, 1960, they went together to see Dr. Samuel Biern, Jr., one of the plaintiffs, and Ann A. Biern, his wife, at their home and explained to them that they, the defendants, contemplated purchasing the home in question but that they were financially unable to purchase and pay for it unless they kept some college girls in the home as roomers for compensation. Mr. St. Clair testified that Dr. and Mrs. Biern replied as follows: 'And they said that they thought that would be a good idea, and that they wouldn't object, * * * and they thought it would be all right for us do that.' Mrs. St. Clair testified that Dr. and Mrs. Biern 'said it would be all right.' In relation to the number of female student roomers she and her husband proposed to have in the home, Mrs. St. Clair stated: 'Now, this matter of a few and two, the words sound very similar and it could be a...