Opinion
No. 32914.
November 29, 1937.
1. INJUNCTION.
The granting of an injunction to restrain the use of property should not be allowed, except where parties are irreparably injured in a pecuniary way.
2. INJUNCTION.
Under deed from common grantor merely requiring that if grantee erected a building it should be two stories high, and that the walls below the second story should be solid, purpose of which was to give grantor right to use one wall of a building for any building that grantor might erect on adjoining premises, plaintiff grantee who did erect building on adjoining premises held not entitled to an injunction to tear down a one-story building erected by defendant grantee on adjoining premises which was two feet higher than the building owned by plaintiff grantee and which contained no windows on the side facing plaintiff grantee's lot, where the carrying out of the decree would inflict hardship upon defendant grantee, and would confer no benefit of a substantial nature upon plaintiff grantee.
3. EQUITY.
An equity court will not enforce a decree imposing a hardship on one party merely to gratify a sentimental whim of another party.
4. PERPETUITIES.
Restrictions in deeds providing that grantees, if they erected a building, should erect one two stories high and that walls below second story should be solid and fixing no period for termination were perpetual and unenforceable as contrary to state's public policy, where there was no period or circumstances from which a reasonable period of duration could be determined.
APPEAL from the chancery court of Leflore county. HON. R.E. JACKSON, Chancellor.
Jordan, Antoon Peteet, of Greenwood, for appellant.
Conditions giving rise to the restrictive covenant no longer exist and furthermore the restrictions have been waived by the conduct of appellee.
The jurisdiction of equity to enforce covenants restricting the use of property is not absolute, and where such covenants were made with reference to the continuance of existing general conditions of the property and its surroundings and there was such a change in the character of the neighborhood as to defeat the purpose of the restrictions and to render their enforcement inequitable and burdensome, a court of equity will not enforce these restrictions, but will leave complainant to his remedy at law. Especially should an injunction be denied where this change is due to the acts of the grantor who imposed the restriction or those who derived title under him, or where it appears that complainant would be benefited rather than injured by the erection and violation complained of and where the granting of any injunction would bear very heavily upon defendants since it would be unjust to enforce the covenant specifically under these circumstances.
32 C.J., page 212, sec. 328, page 204, sec. 316, page 216, sec. 334, and pages 77 and 207.
Nothing is better settled in this state, and nothing is or ought to be better understood, than the rule that a mandatory injunction should never issue unless the right to it is so clearly and certainly shown that there can be no reasonable doubt of its propriety, no probability that the defendant can make any valid objection to it, and no possibility that its justice can be controverted.
Thomas v. Miss. Power Light Co., 152 So. 269, 170 Miss. 811; Miss. Power Light Co. v. McCoglan Hotel, 152 So. 271.
The decree of the lower court is vague, indefinite and uncertain.
Griffith's Chancery Practice, sec. 625; Norris v. Norris, 128 So. 342, 157 Miss. 457.
H.C. Mounger, of Greenwood, for appellant.
The restrictive covenants in the deed are so vague, indefinite and uncertain as to be unenforceable.
26 American English Encyc. of Law (2 Ed.) 33; Welsh v. Williams, 37 So. 561, 85 Miss. 301.
The restrictive covenant in the deed has not been broken. The building is a two story building. It was put up by a contractor. He and the defendants considered it a two story building. It has a second story with a floor and is above the lower story. The fact that the building was not as high as the complainants thought it ought to be means nothing.
Conditions giving rise to the restrictive covenant no longer exist; therefore, equity should not enforce the covenant.
Osius v. Barton, 109 Fla. 556, 147 So. 862, 54 A.L.R. 812; 95 A.L.R. 458.
Where the time during which a restrictive covenant is to endure has not been expressly limited, it should be implied that some reasonable limitation adapted to the nature of the case was intended.
Barton v. Moline Properties, 121 Fla. 683, 164 So. 551, 103 A.L.R. 725; Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A.L.R. 452.
This case is barred by the statute of limitations.
Thornton v. City of Natchez, 41 So. 498.
Restrictions and prohibitions as to the use of real property by the grantee should generally be resolved in favor of the free use of the property; and it is obvious that the restriction of the right of a grantee to use his land as he will must be confined within reasonable bounds.
7 R.C.L. 1115, sec. 31. Alfred Stoner, of Greenwood, for appellee.
Parties have a constitutional right to make contracts that are not against public policy, and it has never been held that such contracts violate it. Dodson solemnly covenanted that when a building was built it would be of a certain definite type. When that building was built, it was not of the type agreed upon, and this fact is conclusively shown inasmuch as there was no real contradiction of it by Mr. Kitchell, the only witness for the appellants. How is it that they have always insisted that Mrs. Hyman be bound, to her great prejudice, and deny that they themselves should be bound.
If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say by way of injunction that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not, then, a question of convenience or inconvenience, or of the amount of damage or injury; it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves.
Spilling v. Hutchenson, 111 Va. 179, 68 S.E. 250; Maine v. Mulliken, 176 Mich. 443, 142 N.W. 782.
It will be observed that the appellee seeks merely for legal sanction of a contract that she has followed and obeyed, and she seeks only a writ to give effect to the very words of that solemn contract.
Osius v. Barton, 88 A.L.R. 394.
Equity will not decline to enforce a building restriction on the ground of its violation by some of the grantees affected thereby, where there has not been any such change in the character of the neighborhood as to defeat the original purpose and design of the covenants.
Hyman v. Tash, 71 A. 742; Bowen v. Smith, 74 A. 675; McGuire v. Caskey, 62 Ohio St. 419, 57 N.E. 53; 32 C.J., page 212, sec. 328.
We submit that even if the courts did consider the inconvenience, the proof shows in this case that it would not have been inconvenient nor injurious to the appellants if they had complied with the contract.
In substantial effect, the measure of damage in this case is really liquidated, although not so in legal effect, because a breach on the part of those holding under Miss Attlesey would really entitle the appellee to make of her building a second story building, and thus shut off the light and air in the Attlesey building on the north side, and thus deprive the Odd Fellows of the advantages mentioned by their committee at the time that they recommended the purchase of the lot. However, Mrs. Hyman has a right to rely on the contract, and she prefers to do so rather than breach it by considering the restrictions as abandoned.
Where the breach of a contract consists in the doing of acts that a court of equity can prevent by injunction, and when it further appears that damages at law are not an adequate remedy, because the damage cannot be computed or is otherwise irreparable, such acts will be enjoined.
32 C.J., page 187, sec. 282, and page 189, sec. 284.
The general rule is that, on an application for an injunction to restrain the breach of a restrictive covenant as to the use of land, the court will not take into consideration the relative inconvenience and injury to the parties, and especially is this true where defendant had knowingly and deliberately violated the restrictive covenant.
32 C.J., page 211, sec. 327.
The right to relief by injunction is not lost by laches or estoppel where defendant is not injured by reason of the failure of complainant to take earlier proceedings for the enforcement of his rights.
32 C.J., page 211, sec. 326, and page 213, sec. 332.
It is proper to pray that injunction issue after the case is tried on its merits.
Archer v. Greenville Sand Co., 223 U.S. 60, 58 L.Ed. 850.
If this case is affirmed and remanded, it being in this respect an interlocutory decree, and the chancellor still having full jurisdiction over it, the appellants can apply for any instructions that may be necessary, and certainly the chancellor would have authority, even conceding the decree to be indefinite, for the sake of argument, to modify or amplify it.
Argued orally by H.C. Mounger, and R.A. Jordan, for appellant, and by Alfred Stoner, for appellee.
Appellee, complainant in the court below, filed a bill in the chancery court of Leflore county to restrain appellant, Greenwood Lodge, No. 118, I.O.O.F., from erecting a building in the city of Greenwood upon a lot described in the bill which Minnie L. Attlesey conveyed to F.J. Dobson; the deed therefor containing certain restrictions and limitations. The bill also alleged that appellee, Mrs. Sarra L. Hyman, had secured a deed to the adjoining property lying north of the Dobson property, and that appellant had acquired title to the Dobson property, with the same restrictions imposed on Dobson, on April 13, 1907, and was starting to erect a one-story building thereon. The bill then prayed for an injunction to restrain the building started by appellant. The bill was filed on April 2, 1936, but no writ of injunction was issued until the final decree in this cause on March 31, 1937. The bill set forth, in general terms, the conveyances referred to, and copies thereof, in the court below, were filed with the bill. Each of the mesne conveyances referred in the deeds was set forth, and an attempt was made to make the restrictions and limitations contained therein effective.
The answer of respondent, I.O.O.F., denied that Minnie L. Attlesey conveyed to Simon Hyman and Joe Stein all the privileges, rights, covenants, and restrictions stipulated for in the Dobson deed, as charged in the bill; denied that the ownership of the I.O.O.F., defendant in the court below, of the Dodson land is subject to the restrictions contained in the Dodson deed, and denied that respondent is bound by said restrictions, or is now erecting a building which in no way conforms to the said restrictions, and is in absolute violation and in utter disregard of said restrictions. Said answer further denied that unless respondent is restrained from erecting a one-story filling station on said lot, that appellee will suffer irreparable injury if same is erected; denied that the construction and erection of said building is in violation of said restrictions; that all material that may be put on said lot should be removed; and denied that appellee is entitled to an injunction against appellant compelling it to remove such material from said lot. By amendment to said answer, appellant says that in the year 1912 the said Simon and Sarra L. Hyman, without waiting for any building to be erected on said Odd Fellows' lot, erected the brick building now occupied by Sarra L. Hyman, on their lot north of the Odd Fellows' lot; that the object of the requirement in the Dobson deed was to enable the north wall of any building to be erected on said Odd Fellows' lot to be used as a south wall for any building to be erected on said Hyman lot, and that the building on said Odd Fellows' lot was not erected until April, 1936, many years after the erection of the building on the Hyman lot, and that appellee has not, nor will she in the future, suffer any damage by reason of the erecting of the building on the Odd Fellows' lot. The amendment to the answer then says that the object of said restrictions has ceased, the conditions being no longer required, and that the Hymans have, by their actions, waived said restrictions.
The deed from Minnie L. Attlesey to F.J. Dobson, above mentioned, was executed on April 13, 1907, and, among other things, recites that: "It is understood, agreed and stipulated, as a material part of the consideration for this conveyance, which is made upon the conditions that no building shall ever be erected on said premises unless such building be of brick, stone, concrete, or some similar material, and be, at least, two stories high, that the North wall of any such building, which said North wall shall be, at least, two stories high its full length, shall be wholly upon the said premises and shall have no windows or other openings therein below the windows of the second story; that the window sills of the second story window shall be at a height from the ground as great, at least, as is now usual for second story window sills in brick business buildings in said City of Greenwood; that I shall have the right to use said North wall as high as, but no higher than, the window sills of the said second story window therein, as a South wall for any building which may be erected on that certain tract of land owned by me fronting twenty-two and one-half feet on Main Street, and running back a rectangular depth of one hundred feet lying North of and adjacent to the premises conveyed by this instrument; that in the event the North wall of any building erected, as hereinbefore provided, on the premises conveyed by this instrument, shall be located South of the Northern boundary line of the premises conveyed by this instrument, I shall have the right to use, in connection with said wall and in order to secure the benefits of the use thereof as hereinbefore provided, the space intervening between said North wall as located and the Northern boundary line of the premises conveyed by this instrument for the erection and maintenance on said space and the tract of land hereinbefore described lying North of the premises conveyed by this instrument of such building as may be erected thereon; that in the event of the destruction or removal of any such building erected, as hereinbefore provided, the premises conveyed by this instrument, the same stipulations as to the construction and the same right to the use of the North wall thereof and the space between such North wall and the Northern boundary line of said premises shall attach to any building subsequently erected on said premises; that I shall have the right, at any time, to transfer the rights and privileges herein reserved by and granted unto me; and that the said F.J. Dobson, for himself and those holding under him the premises conveyed by this instrument hereby covenant and undertake faithfully to observe the said rights and privileges, it being understood that the said F.J. Dobson does not undertake or agree to erect any building upon the premises conveyed by this instrument, but does agree and covenant that any building which may be erected thereon shall conform to the conditions and stipulations herein contained."
The deed from the Attleseys to Simon Hyman and Joe Stein dated June 1, 1910, among other things, recited as follows: "It is understood, agreed and stipulated, as a material part of the considerations for this conveyance, and this conveyance is made upon the conditions, that the said Simon Hyman and Joe Stein will faithfully observe and keep all of the covenants and agreements of Minnie L. Attlesey with said F.J. Dobson relative to the construction or erection of a building or buildings, upon the premises herein described, which said covenants and agreements are set forth and described in the above described deed from said Minnie L. Attlesey to the said F.J. Dobson and that no building or structure, of any kind whatever, shall ever be constructed or erected upon said above described premises, unless such building be of brick, stone, concrete or some similar material and having a tin, metallic or slate roof, that no building shall be constructed upon said premises to a height greater than the bottom of the window sills of the second story windows in the South wall of the building known as the Attlesey building, situate on the North line of the above described premises; and that no building, when erected upon said premises shall be used as a church or place of worship; and it is understood and agreed that the said Simon Hyman and Joe Stein, for themselves and those holding under them the premises conveyed by this instrument, hereby covenant and undertake faithfully to observe the stipulations and conditions herein contained, and agree that all of the provisions, restrictions and conditions contained, or referred to in this conveyance may be enforced by the said Minnie L. Attlesey and by those holding by, through or under her, any land adjoining the premises herein conveyed."
The building erected by appellant was two feet higher than the building owned by appellee on the lot immediately north of appellant's lot, and the north part of this building which was used as a filling station contained no windows, or other openings, and the other part of the building was not as high as buildings erected in Greenwood in 1907 containing two stories. It was shown in the evidence that the height of the building erected by the Odd Fellows is only two feet higher than the one-story Hyman building, which had been erected many years prior to 1912. It further appears that the appellant, I.O.O.F. Lodge, No. 118, had arranged for the release of the restrictions and had secured a contract from Minnie L. Attlesey to that effect. It was not shown by the evidence what the height of second story windows in other buildings in Greenwood in the year 1907 were, and in the decree there was no requirement for the building to be of a specified height, but it was left unascertained, but the appellant was directed to tear down and remove the building, or rebuild to the required height, as buildings existed in Greenwood in 1907. There was no proof of any specific damage that would flow to Mrs Hyman from a violation of the restrictions in the above referred to deeds.
There were no windows in the north side of the Odd Fellows' building, and it does not appear from the proof that had the building been erected two stories high the windows would have been any higher than the north wall was. The deed above mentioned to Dobson, and from him through mesne conveyances to the appellant, did not require Dobson or his grantees to erect any building, but merely that if he did erect one, it should be two stories high, and that the walls below the second story should be solid, and it is manifest that the purpose of the restrictions in each of the above-mentioned deeds was to give the grantor, Minnie L. Attlesey, the right to use the north wall of the building, if any should be erected, for any building that the grantor, or those holding under her, might erect. Mrs. Hyman had erected a brick building, and as there was no showing of any purpose to erect any other building than the one she now has, it does not appear that she would suffer any injury by the appellant's building other than the right to use the north wall as a party wall for any building she might, in the future, erect. She certainly suffered no pecuniary loss. Her alleged injury is merely esthetical or sentimental, and there is no proof to show that the value of her property was damaged in any pecuniary way.
So far as this record shows, this suit was filed to enforce a capricious right to gratify a sentimental whim.
The granting of an injunction to restrain the use of property should not be allowed except where the parties are irreparably injured in a pecuniary way. In 32 C.J., section 29, page 49, it is said that: "Subject to some limitations hereafter considered, in order to entitle a person to injunctive relief, whether prohibitory or mandatory in its nature, he must establish as against defendant an actual and substantial injury; and this is true whether the injury is single or continuous, and especially is this true where in addition, the writ would operate oppressively to true justice. In other words, a complainant is not entitled to an injunction where he can show no injury to himself from the action sought to be prevented, where the damage is so small, and the right so unimportant as to make the case a trivial one, or is technical and inconsequential, or fanciful and sentimental. . . ." See, also, 14 R.C.L., page 307, sec. 5; Power v. Ratliff, 112 Miss. 88, 72 So. 864, Ann. Cas. 1918E 1146; Parrot Silver Copper Co. v. Heinze, 25 Mont. 139, 64 P. 326, 53 L.R.A. 491, 87 Am. St. Rep. 386, and Mott v. Underwood, 148 N.Y. 463, 42 N.E. 1048, 32 L.R.A. 270, 51 Am. St. Rep. 711.
In the case at bar, the carrying out of the decree of the court below would inflict great expense, trouble, and hardship upon the appellant, and would confer no benefit, of any substantial nature, upon the appellee, and a court of equity will not enforce a decree imposing a hardship upon one party to merely gratify a sentimental whim of another party.
Furthermore, the restrictions set out in the deeds are not limited in time, and fix no period for termination thereof. It is clear from the deeds above quoted from that the restrictions are perpetual in duration, which is clearly contrary to public policy, and is forbidden in this state. See Leigh v. Harrison, 69 Miss. 923, 11 So. 604, 18 L.R.A. 49; Crawford v. Solomon, 131 Miss. 792, 95 So. 686; Bratton et al. v. Graham et al., 146 Miss. 246, 111 So. 353; Reddoch et al. v. Williams et al., 129 Miss. 706, 92 So. 831. In that case, and in others, there was sufficient data to determine at which point the limitation would be cut off, but in the case at bar there is nothing we can take hold of that would determine the point at which the restrictions in the deeds would become invalid. By their very language, the restrictions are perpetual, and we have no means of judging from the conveyances, any time at which they cut down for exceeding the time period allowed. In Burdick on Real Property, page 386, it is said that: "Unless otherwise provided by statute, no future contingent and indestructible interest in property can, in general, be created which must not necessarily vest within twenty-one years, exclusive of periods of gestation, after lives in being."
There is no period of time, or circumstances, from which a reasonable period can be determined in the case at bar, and consequently the court below was in error, and the judgment will be reversed and the cause dismissed.
Reversed, and cause dismissed.