Weber v. Graner

• Decision Date: 14 December 1955
• Citation: 137 Cal.App.2d 771,291 P.2d 173
• Court: California Court of Appeals Court of Appeals
• Parties: Milton WEBER et al., Plaintiffs and Respondents, v. Stella A. GRANER et al., Defendants. Charies H. Tarbox and Roberta Tarbox, Appellants. Civ. 21209.

Page 173

291 P.2d 173

137 Cal.App.2d 771

Milton WEBER et al., Plaintiffs and Respondents, v. Stella A. GRANER et al., Defendants Charies H. Tarbox and Roberta Tarbox, Appellants.

Civ. 21209.

District Court of Appeal, Second District, Division 2, California.

Dec. 14, 1955.

Hearing Denied Feb. 8, 1956.

Herbert T. Silverberg, Los Angeles, for appellants.

Charles A. Bank, Beverly Hills, for respondents.

FOX, Justice.

By this action plaintiffs seek a declaration that the deed restrictions covering their property do not prohibit its use for apartment house purposes. From a judgment in their favor defendants Tarbox appeal.

The case was submitted on an agreed statement of facts. The property involved is known as the Olivo Heights Tract, which consists of ten lots on the north of Hillside Avenue comprising the block between La Brea Avenue to the east and Fuller Avenue to the west, in the Hollywood area in the city of Los Angeles. The lots are numbered 1 to 10, inclusive, starting from Fuller Avenue. Plaintiffs own the easterly 50 feet of Lot 7 and all of Lots 8, 9 and 10, which extend to La Brea. The total frontage of the tract on Hillside is 794.46 feet, of which plaintiffs own 287.78 feet. Lot 10, which is the northwest corner of Hillside and La Brea, has a depth of 208.37 feet on the latter thoroughfare.

On April 20, 1904, the owner, Lizzie T. Hay, conveyed the entire tract to five different grantees. Identical restrictions appear in each deed, the pertinent portions thereof reading as follows:

'Subject however, and this conveyance is accepted by the party of the second part, upon the following express conditions to wit:

'(a) That the above premises are sold, and are to be occupied for residence purposes only, and nowise for business purposes:

'(b) That any building constructed for or to be used as a dwelling house and erected or placed on said premises at any time hereafter, shall cost not less than three Thousand Dollars--$3,000.00----

'(c) That every such dwelling house shall be located so that the extreme front projection of such building or structure shall be not less than sixty--60--feet distant from the outside or Street line of the curb in front of said lot;

'(d) That no stable or out building shall be located on said premises nearer than One hundred Twenty-five--125--feet to said curb.

'(e) That for any violation of either or any of the foregoing conditions the title and rights of possession and occupancy of the grantee or any of her successors in and to said premises shall thereupon (as soon as entry and demand for possession is made by said party of the first part or her authorized agent), wholly cease and terminate and thereupon be and become vested in the party of the first part, her heirs or assigns;

'(f) That the provisions of the foregoing conditions subsequent shall in addition to the foregoing termination of ownership in favor of said grantor, also operate in favor of each and every third party,--being the owner or entitled to the possession of any other lot or lots in said tract,--so far as to entitle such third party or parties at any time to restrain or enjoin by proper action the further or any threatened, doing of any act in violation of any of the foregoing conditions.'

This tract was originally zoned for single family residence. In July, 1953, plaintiffs' property was rezoned R-3, which permits 'group dwelling' and 'multiple buildings.' The zoning of none of the other lots has been changed from R-1 ¹ and each is improved with a single family residence. These were built between 'prior to 1914' and 1927. There was a large private residence on plaintiffs' property but it was torn down in 1953 soon after they purchased it. ²

In Hannula v. Hacienda Homes, 34 Cal.2d 442, 444-445, 211 P.2d 302, 304, 199 A.L.R.2d 1268, the court stated: 'Restrictions on the use of land will not be read into a restrictive covenant by implication, but if the parties have expressed their intention to limit the use, that intention should be carried out, for the primary object in construing restrictive covenants, as in construing all contracts, should be to effectuate the legitimate desires of the covenanting parties.' The guiding rules in achieving this purpose are clear: (1) A grant is to be construed in like manner with contracts in general (Civ.Code, sec. 1066); (2) the language of the instrument must determine its interpretation where it is clear and explicit, Civ.Code, sec. 1638; Hensler v. City of Los Angeles, 124 Cal.App.2d 71, 77, 268 P.2d 12; (3) technical rules of construction will not be employed if the intention of the parties can be plainly discovered from the four corners of the instrument, Paddock v. Vasquez, 122 Cal.App.2d 396, 400, 265 P.2d 121, 124; (4) 'the intention of the parties is to be gained from a consideration of the entire instrument though the immediate objective of the inquiry is the meaning of an isolated clause, taking into consideration every provision, clause and word, whether of grant, or description, or of qualification, exception, or explanation', Paddock v. Vasquez, supra; (5) nontechnical words in a conveyance are to be given their ordinary and plain meaning unless the context shows they are used in a different sense, Wood v. Mandrilla, 167 Cal. 607, 609, 140 P. 279; (6) restrictive covenants are to be strictly construed against limitations upon the free use of property and will not be extended by implication. Wing v. Forest Lawn Cemetery Ass'n, 15 Cal.2d 472, 101 P.2d 1099, 130 A.L.R. 120; Hannula v. Hacienda Homes, supra. Tested by these rules, we are of the opinion that the restrictions embodied in the deed clearly set forth the intention of the grantor in plain, simple and concise language, obviating resort to extrinsic aids to ascertain such intention.

Turning now to the language of the deed, the initial provision (paragraph (a)) is that the premises are 'to be occupied for residence purposes only, and nowise for business purposes:'. The parties here state the use to which the property may be put. They define that use both affirmatively--'to be occupied for residence purposes only'--and negatively--and not for business purposes. They have used very simple and unambiguous language to express the use to which this property may be put and the limitation thereon.

Plaintiffs' proposed improvement consists of a two-story building comprising 48 apartments or separate residential suites in which families will live. Thus these premises are 'to be occupied for residence purposes,' and this is so whether the structure is occupied by one family or a number of families. The word 'residence' has reference to the use or mode of occupancy to which the premises may be put. If it had been intended that the improvements to be placed on this property were to be for the use of one family only, words indicating such an intention undoubtedly would have been used, as is frequently done, such as 'a single residence,' 'a private residence,' 'a private home,' 'a private dwelling,' 'a single family dwelling,' or 'a single dwelling house.' Jernigan v. Capps, 187 Va. 73, 45 S.E.2d 886, 890, 175 A.L.R. 1182; Hunt v. Held, 90 Ohio St. 280, 107 N.E. 765, L.R.A.1915D, 543.

The words 'for residence purposes only' in the deed before us were specifically used in contradistinction to business or commercial purposes. Had those words stood alone, the latter uses would be impliedly excluded. But the grantor obviously did not want to leave such an excluded use to implication, hence we have the express provision that the premises are to be occupied in 'nowise for business purposes.' It is apparent that the grantor took pains to define the use to which the property could be put and the limitations on such use. It is therefore significant that no limitation, restriction or qualification is placed upon the character or type of 'residence purposes' to which the property may be devoted.

It is the general rule that a restriction using the broad phrase 'for residence purposes only' merely limits the use of the property to living purposes as distinguished from business or commercial use and does not preclude the erection of an apartment house designed exclusively for residential occupancy. Baker v. Smith, 242 Iowa 606, 47 N.W.2d 810; Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483, 14 A.L.R.2d 1372; Courtney v. Hunter, 159 Ga. 321, 125 S.E. 714; Brandenburg v. Country Club Bldg. Corp., 332 Ill. 136, 163 N.E. 440; McMurtry v. Phillips Inv. Co., 103 Ky. 308, 45 S.W. 96; Yorkway Apts. Inc., v. Dundalk Co., 180 Md. 647, 26 A.2d 398; Casterton v. Plotkin, 188 Mich. 333, 154 N.W. 151; Teagan v. Keywell, 212 Mich. 649, 180 N.W. 454; Miller v. Ettinger, 235 Mich. 527, 209 N.W. 568; Huntington v. Dennis, 195 N.C. 759, 143 S.E. 521; Jernigan v. Capps, Va., supra; Hunt v. Held, Ohio, supra. See, also, Annotation in 14 A.L.R.2d 1376, at pages 1403-1404. Our analysis of the language in paragraph (a), which is definitive of the use to which this property may be put, demonstrates that it falls squarely within the foregoing rule and sanctions the type of improvement plaintiffs propose to make.

Defendants contend that the restrictions in the deed must be interpreted as limiting the use of the property solely to single homes. They rely upon Walker v. Haslett, 44 Cal.App. 394, 186 P. 622, and certain authorities from other jurisdictions to which we will presently advert. The Walker case is clearly inapposite. The restrictive covenant in that case provided, in its pertinent part, that "no building or structure whatever, other than a first-class private residence * * * shall be erected * * *." (Italics by court.) Defendants erected a building that had "two separate and distinct parts" in each of which a family could live "entirely separate and apart from each other." The court granted an injunction against its use, observing that it actually constituted a double building or two residences. As such, the court...