Opinion
May 30, 1973.
Upon appeal from the Court of Chancery.
Thomas Herlihy, Jr., Wilmington, for defendant below, appellant.
Karl J. Parrish, Wilmington, for plaintiff below, appellee.
CAREY and HERRMANN, JJ., and CHRISTIE, Judge, sitting.
Defendant-appellant Harvey F. Williams (hereinafter "Williams") appeals from an order in the Court of Chancery, 290 A.2d 678, granting an injunction in favor of plaintiff-appellant Brookside Community, Inc. (hereinafter "Brookside") which requires Williams to remove a fence he had constructed on his property in violation of a restrictive covenant in his deed.
Brookside is a Delaware corporation to develop and administer the community of Brookside, which consists of 1345 homes and approximately 8500 people. One of the deed covenants common to all of the Brookside properties prohibits the construction or erection of any kind of fence from the front building line to or along the front lot line. With knowledge of this covenant, Williams erected a combination wood, iron, and metal fence enclosing his front yard.
Brookside is a civic association and one of its committees, the Deed Restriction Committee, regularly inspects the community properties to enforce deed covenants. Upon Brookside's request, Williams refused to remove the fence and this action followed.
Williams admits that he has fenced his property, but argues that the covenant is unenforceable because (1) his fence does not violate the covenant, and (2) Brookside has waived its right to enforce the covenants by its acquiescence as to other violations.
The Chancellor ruled that the covenant was valid and enforceable and that Williams was in violation of the covenant. The Chancellor also ruled that Brookside did not waive its right to enforce the covenant by acquiescing to other alleged "violations," which consisted of ornamental bushes, flower bed "dividers," and patio dividers, none of which enclosed or fenced the front yard of any of the lots on which they were located.
The Chancellor's ruling is a factual one based on the testimony presented before him and his personal view of the Brookside community. The question on this appeal is whether there is adequate evidence to support the Chancellor's ruling. It is settled law that this Court may review the facts as found by the Chancellor, but may not reverse if the findings are supported by the evidence and are the product of an orderly deductive process on the part of the Chancellor, even though we, in that instance, might have independently ruled otherwise. Colt Lanes of Dover, Inc. v. Brunswick Corporation, Del. 281 A.2d 596 (1971); application of Delaware Racing Association, Del., 213 A.2d 203, 207 (1965); Nardo v. Nardo, Del., 209 A.2d 905, 911 (1965). The record here presents no conflicting evidence sufficient to warrant reversal of the Chancellor's order.
The judgment below is accordingly affirmed.