Whitehurst v. Burgess

• Decision Date: 16 June 1921
• Citation: 107 S.E. 630
• Parties: WHITEHURST v. BURGESS et al.
• Court: Virginia Supreme Court

107 S.E. 630

WHITEHURST

v.BURGESS et al.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Appeal from Circuit Court, Norfolk County.

Suit by W. B. Burgess and others against E. M. Whitehurst to enjoin the building of a store building on certain lots. Decree for complainants, and defendant appeals. Affirmed.

E. R. F. Wells and Wm. T. Higgins, both of Norfolk, for appellant.

Pender, Way & Foreman, of Norfolk, for appellees.

SAUNDERS, J. This appeal by E. M. Whitehurst is from a decree of the circuit court of Norfolk county, enjoining the said Whitehurst (defendant below) from building a store building on four lots of land on Atlantic boulevard, south of Hanover avenue, until the expiration of 21 years from October 10, 1910.

These lots are in Larchmont, a subdivision in Norfolk county originally owned by the Larchmont Realty Corporation, which had caused the same to be platted into lots, blocks, and streets. A portion of this area, to wit, 840 lots, was conveyed to the Larchmont Investment Corporation by the Realty Corporation. The appellant, Whitehurst, derived his title by successive conveyances from the Larchmont Realty Corporation through the Larchmont Investment Corporation.

The Larchmont Realty Corporation, in conformity with a systematic and definite plan, laid off and platted Larchmont into building lots. The Larchmont Investment Corporation approved this plan, and confirmed and carried out the same. Many lots were sold by the Realty Corporation and the Investment Corporation. All of the deeds made by these corporations contained numerous and identical restrictions, designed to carry out and make effective the original general plan. Whitehurst derived immediate ti-tle to his lot from T. M. Bellamy and wife, Bellamy from J. E. White and wife, White from the Investment Corporation, and the Investment Corporation from the Realty Corporation.

The deed from the Investment Corporation to White contains all the restrictions included in its deed from the Realty Corporation, and is expressly made subject to the same, which are stated to "apply and pertain generally to the property of the Larchmont Investment Corporation, and particularly to the property therein conveyed, and which are to extend for a period of 21 years from October 10, 1910." The conveyances from Stewart and wife to Bellamy, and from Bellamy and wife to Whitehurst, are also made expressly subject to the foregoing restrictions.

From the above recitals, it will clearly appear that Whitehurst was fully apprised of the restrictions imposed upon all building lots originally derived from the Larchmont Realty Company.

After his purchase of lots 23, 24, 25, and 26 in block 9 of the plat of Larchmont, situate on the west side of Atlantic boulevard and south of Hanover avenue, Whitehurst arranged to erect four stores on the same, and proceeded to dig his foundations. Thereupon W. B. Burgess and many others, owners of lots in Larchmont, filed their bill of injunction against Whitehurst, alleging that all of the buildings in Larchmont, except churches and a public school building, were private residences; that there were no stores or other buildings used for commercial purposes within this area; that all of the owners of lots in Larchmont were observing the restrictions and conditions in the deeds to these lots; that in consequence thereof Larchmont was an exceedingly quiet, desirable, pleasant, and wholesome community, devoted exclusively to home purposes; that the erection of the proposed store buildings would cause irreparable damage to the complainants, and was in direct violation of restriction No. 3 in the deeds to the Larchmont property, said restriction being in the following words:

"That two adjoining lots will constitute a building site for one residence only, except on Surrey Crescent and Atlantic Boulevard, south of Hanover avenue, where four adjoining lots will constitute a building site for one residence only, and on Westmoreland and Buckingham avenues, where three adjoining lots will constitute a building site for one residence only."

Later the complainants filed a supplemental bill, and the defendant answered both bills, admitting the allegations of the same, except such allegations and averments as set up the claim that the property in question could not be used for other than residential purposes.

Upon consideration of the bills, answer general replication, and exhibits, the trial court enjoined the defendant, Whitehurst, from erecting the store buildings complained of. From this decree the present appeal was allowed.

The sole question presented for determination in this case is the interpretation of restrictive provision number three, cited supra. Appellant insists that the language used, to wit, that on certain streets two adjoining lots will constitute a building site for one residence only, on other streets three adjoining lots will constitute a building site for one residence only, and on still other streets four adjoining lots will constitute a building site for one residence only, does not prohibit the use of these lots for business purposes. Appellees maintain that by necessary implication the use of these lots for other than residential purposes is forbidden by the deed under which the appellant takes title.

The principles upon which appellant relies are that restrictions upon the free use and disposition of property are not favored, and will be strictly construed, that they should not be extended beyond the clear meaning of the language used, and that unless the thing sought to be enjoined is plainly within the restrictive covenant, an injunction should not issue. Further, that where the right of a complainant to relief by the enforcement of a restrictive covenant is doubtful, "to doubt is to deny." Clark v. James, 87 Hun. 215, 33 N. Y. Supp. 1020; 13 Cyc. 687, 713; Stone v. Pillsbury, 167 Mass. 332, 45 N. E. 768; Underwood v. Herman & Co., 82 N. J. Eq. 353, 89 Atl. 21; Fortesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. 923; James v. Irvine, 141 Mich. 376, 104 N. W. 631; Duvall v. Craig, 2 Wheat. 45, 58, 59, 4 L. Ed. 180.

Applying these principles to the provision that "four adjoining lots will constitute a building site for one residence only" the appellant concludes that this language means "that no more than one residence shall be erected on a plot of land consisting of four lots"; further, that "the provision is for the benefit and protection of a person who desires to use his lots for residential purposes. It secures him light, air, and space for his residence. But it does not inhibit him from using the land for other than residential purposes."

Appellant stresses his contention that the provision cited does not in express terms provide that the "property must be used for residential purposes only." A thing may be forbidden by necessary implication as clearly and positively as by terms of express inhibition. In the discharge of the task of interpreting a written instrument, if it is apparent upon the whole that the instrument carries by definite and necessary implication a certain meaning, then the thing afforded, or denied, by that meaning may be said to be as clearly and definitely extended, or forbidden, as if the language used had been in positive and definite terms of affirmation or negation.

It is a fundamental rule that in the construction of deeds the object of the court is to ascertain the true intention of the parties, and that in order to ascertain this intention all parts of the deed should be taken and considered together.

"Every deed is supposed to express the intention of the parties, and, however unusual the form may be. it is a primary and cardinal rule of construction, that effect must be given to that intent whenever it is reasonably clear and free from doubt; and in ascertaining the purpose and object of the parties, all parts of the deed must be taken and considered together; it being a rule of law too well settled to need any citation of authority that, in the construction of any instrument, it must be construed as a whole." Temple v. Wright, 94 Va. 338, 26 S. E. 844, cited in Culpeper National Bank v. Wrenn, 115 Va. 57, 78 S. E. 620.

On the subject of the interpretation of restrictive covenants, the following authorities are in point:

"The primary rule for the interpretation [of a covenant] is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement, but the entire context, and where the meaning is doubtful, by considering such surrounding...