Wood v. Stehrer

• Decision Date: 07 December 1912
• Parties: WOOD v. STEHRER.
• Court: Maryland Court of Appeals

86 A. 128

119 Md. 143

WOOD v. STEHRER.

Court of Appeals of Maryland

December 7, 1912

Appeal from Circuit Court of Baltimore City; Henry D. Harlan, Judge.

Action by Robert A. Wood against Frederick Stehrer. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

H Melvin Bull and Enoch Harlan, both of Baltimore, for appellant.

Lawrence J. McCormick and Albert Ecke, both of Baltimore, for appellee.

BOYD C.J.

This is an appeal from a decree sustaining a demurrer to the bill of complaint filed by the appellant against the appellees, and dismissing the bill. Louis J. Roth and Tobias Simon owned two parcels of ground on opposite sides of Dalrymple avenue bounded on the east by Winfield avenue, and each being 200 feet square. They conveyed to the appellant a lot fronting 50 feet on Winfield avenue, and having a depth of 190 feet, to an alley 10 feet wide to be laid out and to be kept open along the westerly side of the 200 feet south of Dalrymple avenue. The lot so conveyed was the southernmost part of that parcel; the beginning of it being on the westernmost side of Winfield avenue at a point distant 150 feet southerly from the corner formed by the intersection of the westernmost side of Winfield avenue and the southernmost side of Dalrymple avenue. Messrs. Roth and Simon, by deed dated November 12, 1908, partitioned their property, whereby Mr Simon became the owner of the part of the parcel on the southernmost side of Dalrymple avenue, which had not been conveyed to the appellant, fronting 150 feet on Winfield avenue and 190 feet on Dalrymple avenue. Mr. Simon died in 1910, and that property became vested in his four children and heirs at law. Two of them conveyed their interests to Aaron J. Simon, who, together with his sister and others, conveyed it to Frederick Stehrer, one of the appellees, by a deed dated February 14, 1912. The said Stehrer thus became the owner of 150 by 190 feet, while the appellant owned the adjoining lot of 50 by 190 feet, and they had the use of the alley in common.

The lot was conveyed to the appellant subject to certain restrictions, conditions, and limitations; and he covenanted, amongst other things, that: "No dwelling house shall be erected or permitted to be erected by himself, his heirs or assigns, at a cost less than $2,500; that no building shall be erected within 35 feet of the building line; *** that said lot of ground shall not be subdivided in lots less than 50 feet front on Winfield avenue." We have omitted some of the restrictions contained in the covenant, as they are not claimed to be involved in this case. The parties of the first part (who were Mr. and Mrs. Roth and Mr. Simon) covenanted in the deed "that they will not grant, convey, assign, or lease any of the ground they now own or shall hereafter acquire in the same locality as the above-described lot of ground to any one except under and subject to the aforesaid restrictions, conditions, and limitations." The deed of partition is not in the record; but the one to Frederick Stehrer does not contain or refer to any of the restrictions, conditions, or limitations mentioned in the deed to the appellant.

The bill alleges that the Oakland Realty Company, which was made a defendant, was furnishing, or about to furnish, the money which the defendant Stehrer was "about to use in the erection on the said lot of a closely built row of two-story brick houses, which houses will not cost $2,500 each, will not be 35 feet back from the building line, nor on lots 50 feet in width." It also alleges that the houses will front on Dalrymple avenue, and their back yards will extend toward and in the direction of plaintiff's dwelling, which he had erected on his lot. It prays for an injunction to enjoin the defendants from erecting the row of two-story houses on the Dalrymple front of the lot, from which the plaintiff's property is carved, or from erecting on said lot any building except in conformity with the agreement and restrictions contained in the deed to plaintiff.

The restriction "that no building shall be erected within 35 feet of the building line" evidently referred to the "building line" on Winfield avenue, as that was the only avenue on which the lot conveyed to the appellant fronted; and there are several references to that avenue which would indicate that such was the intention. Indeed, if that be construed to refer to both Dalrymple and Winfield avenues, and the lots were laid out so as to front 50 feet on Winfield avenue, as the deed authorized, the one nearest Dalrymple avenue would be useless, for, if it could not be built upon within 35 feet of that avenue, there would only be 15 feet of the lot remaining. Then one of the provisions, which we did not refer to above, prohibited the erection of "any outbuilding, stable, or henhouse" "within 100 feet of the building line." That would prevent either of those buildings from being erected on any part of the first two lots of 50 feet fronting on Winfield avenue, if the "building line" be construed to refer to that of Dalrymple avenue, and appellant's contention be adopted. The bill does not in terms allege that the row of houses was to be built within 35 feet of Winfield avenue; and hence, if that was the only restriction relied on, there would be no ground for relief. It does allege generally that the houses will not be on lots 50 feet in width; but the restriction in that particular is "that said lot of ground shall not be subdivided in lots less than 50 feet front on Winfield avenue." The deed filed with the bill shows that Stehrer's lot had 150 feet front on that avenue; and there is nothing to show that there would not be a depth of at least 50 feet from Dalrymple avenue for the block of houses and yards attached to them. So the only restriction that can properly be claimed to be for our consideration is the one in reference to the cost of the building.

There have been a number of decisions in this state in reference to such and other restrictions. The case of Thruston v Minke, 32 Md. 487, is a leading one on the subject, but it was between the original parties to the covenant; and in Halle v. Newbold, 69 Md. 265, 14 A. 662, the court, in speaking of that case and ...