Summary
In Johnson v. Shaw, 101 N.H. 182, 137 A.2d 399 (1957), the defendant constructed certain buildings in violation of a restrictive covenant, and the trial court enjoined him from completing a building and compelled its removal.
Summary of this case from N.H. Donuts, Inc. v. SkipitarisOpinion
No. 4595.
Argued November 5, 1957.
Decided December 18, 1957.
1. Where the grantor owned hotel property on one side of a highway and conveyed one of several lots she owned across the highway subject to the restriction that no "overnight cabins" were to be erected on such lot within a certain distance from the highway, such restriction was properly found to have been imposed for the benefit of the grantor's remaining holdings.
2. The plaintiff as a subsequent owner of the part of the remaining land which adjoined the restricted lot, and as successor in interest to the original grantor, was held entitled in equity to enforce the restriction against the defendant as subsequent owner of the restricted lot.
3. The fact that the plaintiff asserted no claim that reciprocal rights were created among the grantees of lots constituting a part of a general scheme of development did not preclude enforcement by him of the benefit of such restriction to which the defendant's rights were subject.
4. A motel erected by the defendant upon land conveyed with a restriction against the erection of "overnight cabins" within a specified distance from the highway and used in competition with an overnight cabin business on land intended to be benefited by such restriction was properly found to have the essential characteristics of overnight cabins and hence to be within the restriction.
5. While the erection and maintenance of such motel within the distance forbidden by the restriction was in violation thereof a mandatory injunction requiring the defendant to remove it should be granted only upon a finding that justice so requires after due consideration of the evident hardship to the defendant as well as the extent of the damage to the plaintiff.
BILL IN EQUITY, seeking to enjoin the defendant from completing the construction of a building within two hundred feet of the Daniel Webster Highway in Plymouth; and to compel him to remove it from the portion of his land located within that distance from the highway.
The plaintiff, who owns a tract of land adjoining the defendant's land on the north, seeks to enforce a restriction contained in the deed to the defendant providing that "no overnight cabins are to be erected within two hundred feet of the Daniel Webster Highway." The defendant takes the position that the plaintiff has no right to enforce the restriction, and that the structure in question is not prohibited by it.
Trial by the Court (Grimes, J.). At the close of the trial the defendant's motion to dismiss was denied subject to his exception. The Court found that the structure violated the restriction, and ordered the defendant to remove it from the area within two hundred feet of the highway. The defendant excepted to certain findings and rulings made by the Court and to the order for removal of the structure. His bill of exceptions presenting these exceptions was approved and allowed by the Presiding Justice.
The defendant was the only witness to testify, and there was little conflict in the evidence. Much of the proof was documentary. The evidence disclosed that in April 1935, Mary Draper Lyman, a widow, was the owner of a twenty-room hotel known as the Mount Prospect Lodge, situated on the westerly side of the Daniel Webster Highway just north of Plymouth. The land on which the hotel stood extended both north and south of the hotel, and Mrs. Lyman also owned open land across the highway from the lodge, with frontage upon the highway extending southerly for several hundred feet to a point roughly opposite the southerly boundary of her land on the westerly side of the road.
On April 17, 1935, Mrs. Lyman conveyed to Allen and Goodrich a part of the land east of the highway, retaining the northerly portion thereof opposite the lodge. Her deed provided that the property was "conveyed subject to the restriction that no filling station shall be erected within three hundred (300) feet of the northerly point of said property," and "subject to the restriction that no overnight cabins are to be erected within two hundred (200) feet of the Daniel Webster Highway." The deed further provided that "the owner of the Mt. Prospect Lodge so-called is to have the first refusal to purchase said property" in the event of future sale.
On February 16, 1938, the grantee Allen, having acquired Goodrich's interest in the land deeded by Mrs. Lyman, conveyed to Clarence P. Eastman predecessor in title of the defendant, the northerly portion of that land consisting of 5.3 acres with a frontage of three hundred feet on the highway. The deed to Eastman contained the restrictions which had appeared in Mrs. Lyman's deed, except that the "first refusal" in case of sale was retained by the grantor Allen. Thereafter, according to the defendant's testimony, Eastman built several overnight cabins on the property in 1938, 1939, and 1940. These buildings, which face the highway on a line parallel to it, are more than two hundred feet from the highway.
By deed dated May 15, 1939, Mrs. Lyman conveyed to the plaintiff's predecessors her remaining holdings, including the piece of land east of the highway lying north of the Eastman land. This deed contained no building restrictions, and did not refer to the restrictions contained in her earlier deed of April 17, 1935. According to the defendant's testimony six overnight cabins now located upon the tract across the highway from the lodge and operated under its name were erected in 1940 or 1941.
By deed dated April 2, 1945, the defendant acquired from Eastman the land and buildings east of the highway next south of the tract across from the lodge. The deed to the defendant contained the same restrictions with respect to the erection of overnight cabins and a filling station which had appeared in Mrs. Lyman's deed of April 17, 1935. It also contained a reference to a "filling station . . . adjoining the premises herein described."
Later in 1945 Eastman conveyed the southerly portion of the original Allen and Goodrich tract to a predecessor of Watts, the present owner of this tract, by a deed which likewise contained the restriction that no overnight cabins should be built within two hundred feet of the highway. Watts thereafter obtained from Mrs. Lyman under date of April 17, 1951, a deed of "all [her] right, title and interest in and to" the restriction relating to overnight cabins contained in her 1935 deed to Allen and Goodrich. The Watts land is now the site of a filling station and a number of overnight cabins, some of which are located in a row at right angles to the highway commencing within fifty feet of it, and just south of the defendant's southerly boundary.
On May 21, 1951, the property which Mrs. Lyman conveyed in 1939, including the lodge and the tract across from it, was acquired by the plaintiff. The evidence is that Mrs. Lyman died in 1953.
In 1955, the plaintiff sold the lodge and all of the land on the westerly side of the highway, retaining only the tract on the easterly side. The lodge and the land south of it he conveyed to one set of purchasers, and the land to the north to another. The latter tract is now the site of a dairy and clam bar, located somewhat north of the cabins on the plaintiff's land across the highway.
The building which the defendant has erected upon his land was described by him at the trial as a motel. It is a single one-story structure, seventy-three feet in length and twenty feet in width, placed at right angles to the highway, facing south, with its westerly end about one hundred feet from the traveled way. It contains four sleeping units under a single roof, each with bath, and there are also two kitchens so located as to be usable with a sleeping unit on either side. The building has a four-foot cellar and rests upon a cement block foundation. Other facts are stated in the opinion.
Sheehan, Phinney, Bass, Green Bergevin (Mr. Green orally), for the plaintiff.
Upton, Sanders Upton (Mr. Sanders orally), for the defendant.
In ordering that the defendant's structure be removed from the area within two hundred feet of the highway, the Trial Court found that it violated the restriction in the defendant's deed, and that the restriction "was intended to benefit the remaining land of the grantor [Lyman] by prohibiting the erection of buildings attracting overnight tourists business which would be so located that the view that a northbound tourist would have of cabins located on the northerly tract would be blocked or obstructed by competitive cabins on the southerly tract." To this and to other findings referring to cabins on the land now owned by the plaintiff, the defendant excepted. In support of these exceptions, he points out that there was no evidence that at the time of Mrs. Lyman's conveyance of the defendant's land there were any cabins on the tract on the east side of the highway which she then retained; and that the only evidence with respect to such cabins was the defendant's testimony, introduced by the plaintiff, that these cabins were erected in 1940 or 1941, which was after Mrs. Lyman had sold all of her holdings.
While the record tends to support this contention by the defendant the order of the Trial Court is not to be set aside for that reason. Under the circumstances surrounding the transaction including the restriction with respect to a filling station and the provision for a "first refusal" in case of resale, the Court properly concluded that the restrictions were imposed for the benefit of the property which Mrs. Lyman retained. Mr. Prospect Lodge is situated close by the highway. Mrs. Lyman saw fit to retain ownership of the land immediately across from the lodge, and to impose restrictions upon what she conveyed, designed to prevent the erection of any filling station within three hundred feet south of the "northerly point" of the land conveyed, and of any "overnight cabins" short of two hundred feet from the highway over the entire frontage of several hundred feet to the south.
Whether the restrictions were imposed because the grantor thought that preservation of the prominence of her hotel would serve to attract a larger clientele than might otherwise be the case, or whether she contemplated at some time erecting cabins or other structures across the street from it, which might be less attractive or profitable because of cabins or a filling station to the south, her reasons for imposing the restrictions are not determinative of the rights of the parties. The essential finding that the restrictions were imposed for the benefit of the grantor's remaining land was properly made by the Trial Court. II American Law of Property 417. Restatement, Property, s. 544, comment (c).
The restrictions were necessarily binding upon the immediate grantees. The primary issue is whether the restriction respecting the erection of cabins may be enforced by the plaintiff as a subsequent owner of land intended to be benefited. In granting the relief sought by the plaintiff, the Court ruled that it may.
Since the deed to the defendant included the restriction in question, his rights are plainly subject to it. While not in the form of a covenant on his part, the restriction is enforceable in equity by a party entitled to its benefit. Pratte v. Balatsos, 99 N.H. 430, 433. The plaintiff is admittedly a successor in interest to Mrs. Lyman. Since there is no evidence that the restriction was for the benefit of any one part of the land retained, more than any other, the plaintiff is entitled to enforce it with respect to the land which he now owns. Restatement, Property, s. 551. 3 Tiffany, Real Property (3rd ed.) s. 865. It must be taken to have "touched and concerned" every part of the land retained by Mrs. Lyman. The benefit will run with the land, if not at law, at least in equity. Burbank v. Pillsbury, 48 N.H. 475, 482.
In urging that the plaintiff is not entitled to enforce the restriction the defendant relies upon the absence of requirements laid down in Nashua Hospital v. Gage, 85 N.H. 335, 339, for the creation of reciprocal rights among grantees of lots constituting a part of a general scheme of development. Such rights are not sought to be established in the pending action. On the contrary we are here concerned merely with the enforcement of the benefit of a restriction to which the defendant's rights are admittedly subject, by a successor in title to land intended to be benefited. Enforcement of such a right in equity is clearly permissible. Burbank v. Pillsbury, supra; Bauby v. Krasow, 107 Conn. 109. See 14 Am.Jur., Covenants, Conditions and Restrictions, s. 314; 26 C.J.S., Deeds, pp. 1140-1142. The Court therefore did not err in ruling that it may be enforced by the plaintiff.
In concluding that the restriction may be enforced by the plaintiff, the Trial Court reached the only conclusion of which the evidence fairly admits. Bauby v. Krasow, supra, 115. If it was error to find that the restriction was designed to protect cabins on the northerly lot because no such cabins existed or were shown to have been planned, the error was harmless. Regardless of the exact purpose behind it, the restriction was patently intended to benefit the land retained. The right to the benefit as to the northerly tract now belongs to the plaintiff and may be enforced by him if the restriction has been violated.
The defendant contends that it has not. On any construction of the term "overnight cabins," he maintains, his motel is not within the restriction. In this connection the Trial Court ruled that it is "the real character of the building that should be considered rather than its name." He found that the defendant's building is used in competition with overnight cabins, that it provides the same accommodations, attracts the same trade, and that the "fact that the units are joined together under one roof does not change their essential character." These findings and rulings are sustainable upon the record.
The words "overnight cabins" were not words of art, and the question is what the parties intended by them. It seems plain that Mrs. Lyman intended to prevent the erection of structures designed for use by motorists for overnight sleeping quarters which could properly be regarded as "cabins," or "small houses." Webster's New International Dictionary (2nd ed.) p. 370. The quarters provided by the defendant's motel could reasonably be found to answer that description. Cf. Gillis v. Bailey, 17 N.H. 18, 21. The fact that the roof extended to more than one "small house" or that there were common walls between such "houses" did not make them any less "cabins," or the structure any more an apartment house, or "modern development of an inn or hotel without the service of meals" as the defendant describes it. A "motel" may reasonably be considered to be a building which "merely furnishes the transient guest with sleeping quarters and bath and toilet facilities, with linen service and a place to park his car." Van Der Heide v. Zoning Board of Appeals, 123 N.Y. S.(2d) 726, 730. These are likewise the essential characteristics of "overnight cabins."
The defendant moved to dismiss upon the ground that there was no evidence that the plaintiff was entitled to an injunction or an order for removal of the structure, and upon the ground that the evidence conclusively established that he was not. The order of the Trial Court appears to rest upon the findings that the defendant's motel obstructs the view of the plaintiff's cabins which is available to northbound tourists. While the bill alleged serious depreciation in the value of the plaintiff's premises, and irreparable damages, the record contains no evidence bearing upon the former allegation, and the latter appears to find its chief support, apart from the view and the photographs in evidence, in the testimony drawn from the defendant that in the cabin business it is desirable that the property be "seen as far away as possible on the travelled way" and that the view of the plaintiff's cabins is "partially" obstructed by the motel. The defendant's exceptions raise the issue of whether the relief sought should have been denied as a matter of law.
It has long been settled that injunctive relief is one of "the peculiar and extraordinary powers" of equity (Bassett v. Company, 47 N.H. 426, 437) exercised only when warranted by "imminent danger of great and irreparable damage." Wason v. Sanborn, 45 N.H. 169, 171. "Hardship [upon the defendant] may be a sufficient ground for withholding specific relief" (Manchester Dairy System v. Hayward, 82 N.H. 193, 206) and "theoretical injury . . . does not furnish ground for interposition by injunction." Dana v. Craddock, 66 N.H. 593, 595. See Hunter v. Carroll, 64 N.H. 572; Restatement, Property, ss. 561-564; Torts, s. 941.
No express finding was made upon the issue of whether the injunctive relief granted "would be equitable in view of all the circumstances of the particular case" (Manchester Dairy System v. Hayward, supra, 207; Dunfey Realty Co. v. Enwright, 101 N.H. 195, 198) although the record warranted a finding that it would be. A finding to that effect would ordinarily be implied, in the absence of indication that it was not in fact made. Cf. Hatch v. Hillsgrove, 83 N.H. 91, 98. However in view of the evident hardship which the mandatory injunction will impose upon the defendant, the absence of an express finding by the Court and of any substantial consideration at the trial of the extent of the plaintiff's damage raises doubt as to whether the necessary supporting finding was intended to be implied. We consider that justice requires opportunity to be afforded for clarification of the issue, and leave will accordingly be granted the parties to apply for a finding with respect to it. Hatch v. Hillsgrove, supra. If the order for removal is found inequitable under all the circumstances, the petition should be dismissed. If found to "subserve the ends of justice" (Eaton v. Eaton, 64 N.H. 493, 498), the injunction will stand.
Exceptions overruled nisi.
All concurred.