Whitaker v. Holmes, 5509

• Decision Date: 15 April 1952
• Docket Number: No. 5509,5509
• Citation: 243 P.2d 462,74 Ariz. 30
• Parties: WHITAKER et al. v. HOLMES et al.
• Court: Arizona Supreme Court

Page 462

243 P.2d 462

74 Ariz. 30

WHITAKER et al. v. HOLMES et al.

No. 5509.

Supreme Court of Arizona.

April 15, 1952.

Kenneth Biaett, of Glendale, for appellants.

Clark & Coker, of Phoenix, for appellees.

DE CONCINI, Justice.

This is an appeal from a decree of the superior court denying appellants' injunction to restrain appellees from operating an establishment which dispenses alcoholic beverages, contrary to a restrictive covenant.

Appellants, Charles M. Whitaker et al., hereinafter referred to as plaintiffs, and the defendant Bertha Mae Gardner, one of the appellees herein, by divers deeds of conveyance became seized of certain lands situated in Glendale, Arizona. The plaintiffs are the owners of Lots 6, 7, 8, and 9, Block 3, Park Place Addition. The defendant Gardner is the owner of adjoining Lots 10 and 11, Block 3. The deeds all incorporated by reference a covenant restricting the use of the property owned by them, by prohibiting the manufacture, or sale of intoxicating liquors upon any part of said premises. This covenant was entered into in the year 1892 by the New England Land Company and the Arizona Improvement Company, owners of Park Place Addition. The covenant provided that all subsequent deeds should contain this restriction and if they did not the same would be binding upon the grantee, his heirs or assigns. Nevertheless, defendant Gardner leased to defendants Holmes and Allen a building on said lots 10 and 11, which was being used contrary to said restrictive covenant.

During the period of 1934 to 1941 there was established in this restricted area comprising approximately four sections of land, seven places selling intoxicating liquors. All these establishments however were located in the town of Glendale within a small triangular area and in close proximity to each other.

The place where the violation complained of in this action occurred is located almost a mile from the area where previous violations have taken place. Plaintiffs did not at any time complain or seek to enforce the covenant as against the seven prior violators. Plaintiffs are now seeking to enjoin these defendants from operating a liquor establishment which is located adjacent to their property.

Plaintiffs assign as error the denial by the lower court of an injunction and a subsequent order denying plaintiffs' motion to amend findings of fact and conclusions of law and a denial of their motion for a new trial.

Restrictive covenants at first were always upheld because of the fact that an owner of property could place any restriction he saw fit upon it. The doctrine of restrictive covenants is, as stated in Ainsworth v. Elder, 40 Ariz. 71, 9 P.2d 1007, sic utere tuo ut alienum no laedas. By this concept, the courts not only look to the meaning of the particular words but also to other surrounding circumstances. Ainsworth v. Elder, supra.

Although restrictive covenants are not always upheld by the courts, yet the courts are bound to require a compliance of the covenant if such covenant is not contrary to law and the language of the covenant is clear. Heisler v. Marceau, 95 Fla. 135, 116 So. 447. In Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132, we held that where, as a part of a general scheme of improvement, restrictions are inserted in all of the deeds governing the purpose for which the land may be used, they may be enforced in equity by any of the grantees.

The trial court in its findings of fact found that in 1892 the tract of land in question was principally undeveloped farm land and that today the city of Glendale, Arizona, consists principally of business, industrial, and residential property. We do not disagree with the trial court in that finding of fact and we believe it recognized that the original grantors contemplated a new community would be built when it said on page 33, Transcript of Record:

'* * * And if a town is established, they specifically provided for that, so it wouldn't make any difference whether the conditions changed or not, in that they specifically provided that if it did change or if a village or town was established, that the restrictions would apply anyway.'

Here the court recognized that the covenant when entered into contemplated a town and then in its conclusion of law No. 1 it held:

'The plaintiffs have lost their right to enforce such restrictions by reason of the change in conditions and character of the restricted area, and that the purpose for which said restrictions were created have been defeated, and it would now be oppressive and inequitable to give said restrictions effect.' (Emphasis ours.)

The very language of the court in first recognizing the...