Opinion
Decided June 1, 1928.
Covenants — Building restrictions not extended by conjecture or implication — Doubts resolved in grantee's favor — Residential restriction benefiting adjoining owners unenforceable where tract intervened.
1. Restrictions in conveyances of property may not be extended by conjecture or implication.
2. In case of doubt as to restrictions in conveyances of property, the doubt must be resolved in favor of the grantee.
3. Where restriction to residential purposes in conveyance of lot was for benefit only of grantor and owners of premises adjoining on either side of described premises, owner of lot separated therefrom by intervening lot was without right to enforce restriction against erection of a convent; "adjoining" meaning premises which touch and are in contact with premises involved, as distinguished from premises lying near or adjacent thereto.
APPEAL: Court of Appeals for Cuyahoga county.
Messrs. Stearns, Chamberlain Royon, for plaintiff.
Messrs. Mooney, Hahn, Loeser Keough, for defendant.
This case is here on appeal from the court of common pleas of Cuyahoga county, and was submitted on a transcript of the evidence adduced in that court. The plaintiff, Ella L. Olmsted, is seeking to enjoin the defendant, Joseph Schrembs, Bishop of Cleveland, from using certain property for purposes which the plaintiff claims are in violation of certain restrictions contained in the conveyance under which the defendant holds said property.
The evidence involves a mass of facts, which, in our opinion, have little bearing on a proper determination of the controversy. It appears that prior to 1904 one Benjamin Rose owned a tract of land in the city of Cleveland, bounded by Ashbury road on the north, East 105th street on the east, Wade Park avenue on the south, and East boulevard on the west; that about that time he caused a plat to be made of said tract, dividing the land fronting on East boulevard into 10 lots, and the land on 105th street into 17 lots, and numbering said lots consecutively from 1 to 27. This plat was never placed on record, nor was the allotment so made ever dedicated to the city of Cleveland as a subdivision. It further appears from the evidence that with perhaps one exception none of the lots fronting on East boulevard were disposed of by the original owner, as a whole, in the manner in which they appeared on the plat. In most instances deeds were made for parts of adjoining sublots. The transactions in respect to the sale of the lots fronting on 105th street were quite varied, as the evidence shows, and in our opinion do not in any way strengthen the plaintiff's claim that a general and uniform plan of restrictions was ever adopted and enforced by the owner as to all the lots included in his alleged subdivision. We do not regard the evidence in respect to the transactions involving the lots on this street as materially affecting the question before us. The evidence shows that the defendant is the owner of a part of lot 4 and all of lot 5, as we understand it, as such lots are shown on the original plat. The plaintiff is the owner of a part of sublot 7 as shown by the original plat. It follows, therefore, that between the premises of the plaintiff and those of the defendant are intervening premises which are owned by another party. It will be conceded, we think, that the deeds from the original owner, Rose, to the predecessor in title of the defendant, contained the following restrictions and conditions:
"The above named grantee, for himself, his heirs, executors, administrators and assigns, as a further consideration for this conveyance hereby covenants and agrees with the said grantor, his heirs, executors, administrators and assigns, for the use and benefit of said grantor, his heirs, executors, administrators and assigns and of every other person who shall or may become the owner of or have any title derived immediately or remotely from, through or under the said grantor, his heirs, executors, administrators or assigns, to the premises adjoining the above described premises on either side thereof, as follows, to wit:
"1. That for and during the next ensuing 50 years from and after the date hereof the premises herein conveyed shall not be used by said grantee, his heirs or assigns, for apartment or boarding house purposes, but shall be used for private residence purposes only."
Then follow other restrictions not important in this controversy.
It is the claim of the plaintiff that the restriction limiting the use of the lot for private residence purposes only is being violated by the defendant, and that the latter is now maintaining upon his property a convent, in which live a community of nuns who belong to what is known as the Cloister Order. It is not necessary in the disposition of this case to describe more fully the use to which this property appears now to be dedicated.
By the express language of the restrictions and conditions quoted, it appears that such restrictions are limited to the benefit of owners of the premises adjoining the premises of the defendant on either side thereof. Admittedly the plaintiff is not and never was the owner of the premises adjoining on either side of the premises of the defendant. Restrictions in conveyances of property may not be extended by conjecture or implication. When doubtful the doubt must be resolved in favor of the grantee. Hunt v. Held, 90 Ohio St. 280, 107 N.E. 765, L.R.A., 1915D, 543, Ann. Cas., 1916C, 1051. In view of the plain and positive language employed, we do not regard the limitation in question as open to doubt; but, if it was, that doubt under the rule stated must be resolved in favor of the defendant. It is clear, we think, that the premises protected by the restriction must be "adjoining premises" and on the side of the premises in question. This means that they must be premises which touch and are in contact with the premises complained of. There is no room for controversy as to the meaning of the word "adjoining." Adjoining premises are premises which touch or are connected with the premises involved, as distinguished from premises lying near or adjacent to the lot. It is said in Yard v. Ocean Beach Assn., 49 N.J. Eq. 306, 24 A. 729: "The word `adjoining' implies a closer relation than `adjacent.' The latter word, uncontrolled by the context or subject-matter, is not inconsistent with the idea of something intervening. But the primary meaning of the word `adjoining' is to lie next to, to be in contact with, excluding the idea of any intervening space."
We cannot give to these words, which were the choice of the original grantor, a meaning not in harmony with their general acceptance when applied to real estate.
It is contended by counsel for plaintiff that the word "premises" as here used might have several meanings, but that the most reasonable construction would be to make the word apply to all of the allotment on either side of the lot conveyed to the defendant. We cannot adopt such an interpretation of this language when the premises now owned by the plaintiff were disposed of by the original owner prior to his disposition of the land owned by the defendant, and it necessarily follows that at the time Rose sold the property of the defendant there was then left between the defendant's property and the plaintiff's property an intervening lot. It would require an expansive imagination to conclude that under this language the original owner intended to include as adjoining premises land not then owned by him and wholly separated from the land he was then conveying.
The evidence shows that the owners of the premises adjoining the defendant's property have consented to such use of the property as defendant is now making.
In view of these considerations, we must conclude that the plaintiff has no right of action. This conclusion makes it unnecessary to consider the remaining contentions made in this case. They are not material. We might say, however, in conclusion that we are not by any means convinced that the evidence establishes that a general and uniform plan of restrictions on all the property platted was ever adopted and put into effect by Rose. On the contrary, the evidence clearly establishes that in the disposition of these lots Rose made various changes in the restrictions, particularly in the conveyances of the lots fronting on 105th street, and we believe the evidence establishes that in the sale of one lot fronting on East boulevard no restrictions whatever were imposed.
The petition is dismissed at the costs of the plaintiff.
Petition dismissed.
MAUCK, J., concurs.
Judges MIDDLETON and MAUCK, of the Fourth Appellate District, sitting in place of Judges SULLIVAN, VICKERY and LEVINE, of the Eighth Appellate District.