Argued September 4, 1957.
Decided September 30, 1957.
1. A restriction against the erection of buildings other than for residential purposes as contained in a deed of land to the plaintiffs and designed to protect and benefit other lands in close proximity thereto owned by the defendant, who derived his title by succession from the original grantor, was held to be a covenant running with the land and binding on the plaintiffs.
2. The plaintiffs were not entitled as a matter of law to injunctive relief against enforcement of such covenant because of alleged changed circumstances where no changes have occurred since plaintiffs received their conveyance and such changes as occurred prior thereto were not so radical and complete as to defeat the purpose of the restriction.
3. The failure of the defendant to take action for violation of restrictions in deeds to others of lands in the area does not preclude his enforcement of a similar restriction on land in proximity to his property which would be especially and directly injurious to him.
BILL IN EQUITY, to enjoin the defendants from enforcing certain covenants contained in a deed to the plaintiffs of certain real estate on Weirs Boulevard in Laconia.
The petitioners claim said covenants are no longer in effect because "the covenants have been so abandoned by the defendants and that the character of the area subject to the covenants and the neighborhood thereof has so changed both by the acts and the acquiescence of the defendants since the imposition of the covenants that it is now inequitable to allow the defendants to enforce the same."
The parties stipulated as to certain facts, and supplemental facts were found by a master. The Court (Wescott, J.) denied the petition for injunctive relief and the plaintiffs seasonably excepted. No requests for findings of fact or rulings of law were filed.
The lot in question is a small parcel of land commonly known as Camp Dewey on the westerly side of Weirs Boulevard, and bounded northerly and westerly by that part of Lake Paugus known as Langley Cove, on the south by land of defendant John O. Prescott, and easterly by the Weirs Boulevard. This tract was formerly a part of a large tract of land owned by Prescott Farms Co., a corporation engaged in the sale of lots. In 1927, it conveyed to Ellsworth C. Eddy, the plaintiffs' predecessor in title, the property question by deed, the pertinent provisions of which provided:
"The above-described land is sold and conveyed subject to the following conditions, restrictions and limitations which are intended to be and shall be taken as covenants to run with the land and which are intended to be and shall be taken as conditions thereof, to wit: No houses, structures or buildings to be used as business rooms, storage houses, manufacturing establishments, machine shops, or for other than residential purposes shall be constructed, erected or placed on the lands herein conveyed, nor shall any business or commercial enterprise excepting in connection with the building, renting, leasing or selling of a residence on said land be operated or maintained thereon . . . provided that the conditions, restrictions or limitations herein contained shall not be construed so as to prevent or limit the grantees herein, their executors, administrators, legal representatives, heirs, successors or assigns from keeping and maintaining, on the real estate hereby conveyed, such servants as may be required for family use."
About two years prior to the sale of the property to Eddy, John O. Prescott established two cottages, a small store and tourist cabins on other property of the Prescott Farms Co. about 200 yards north of Camp Dewey. This property was conveyed without restrictions to Robert P. and Bertha L. Tilton by the defendant John O. Prescott. The facilities have been increased since the sale Camp Dewey.
Prescott Farms Co. was dissolved as a corporation by decree of the Superior Court entered January 7, 1928, after distribution of its assets to the defendants who were the chief stockholders. As his share of this distribution, John O. Prescott received a small parcel lying south of the Camp Dewey lot and a large lot of more than 150 acres upon which his residence is located which is on the easterly side of the highway about opposite Camp Dewey. These conveyances contained no restrictions.
In 1927, shortly after the conveyance of Camp Dewey, John O. Prescott conveyed to Jane Westhall a shore tract immediately south of plaintiffs' property but separated by a 50-foot right of way. In this conveyance Prescott imposed restrictions to the extent that the premises may not be used for business or commercial purposes except for summer rental cabins, ". . . but not including overnight camps." This tract is advertised as "Whispering Pines" with furnished cottages for rental on a daily or weekly basis.
Philip and Claire Roux own property on the west shore of Langley Cove opposite and within one-fourth of a mile of Camp Dewey. This property was originally sold by Prescott Farms Co. to Delos E. Prescott, subject to the same restrictions as imposed on Camp Dewey. In 1954, Delos sold the property to Philip and Claire Roux, who constructed and now conduct a motel thereon known as "Christmas Island Motel." Permission to operate this establishment was given by John, Delos and Samuel Prescott by instrument dated June 22, 1954.
Two other parcels on the southwest side of the highway and north of the Roux property, owned by Mr. and Mrs. Marquis and Mr. and Mrs. Clifford, are operated as a tourist cabin rental business although subject to the same restrictions as contained in plaintiffs' deed. One Macalaster operates a cabin rental business subject to the same restrictions on the lake shore west of the Roux property.
In 1940, Ellsworth C. Eddy conveyed the property in question to Doris Eddy Gentsch, who in turn conveyed it to the plaintiffs on August 13, 1954. In each of the above deeds the said restrictions were renewed verbatim.
Bernard I. Snierson and John P. Chandler (Mr. Chandler orally), for the plaintiffs.
Upton, Sanders Upton (Mr. Richard F. Upton orally), for the defendants John O. and Samuel J. Prescott.
The master found that when the plaintiffs discussed purchase of the property, they were fully aware of the existing restrictions and that they purchased relying upon the statement of Ellsworth Eddy that John O. Prescott, by an instrument dated June 1, 1954, had released the restrictions. It was further found that after execution Eddy had inserted, without authorization of either party, a clause in this instrument which purported to remove the restrictions as to a "motel." The parties agreed in the deed of conveyance of the property that the restrictions imposed "are intended to be and shall be taken as covenants to run with the land and which are intended to be and shall be taken as conditions thereof . . . ." There is nothing in the evidence which discloses that a common grantor had adopted a general scheme of development or uniform plan restricting all lots sold in the same manner and intending to create reciprocal benefits. Nashua Hospital v. Gage, 85 N.H. 335; Sun Valley c. Co. v. Watts, 98 N.H. 428. There was evidence from which it could be found that the restrictions imposed on the plaintiffs were designed to protect and benefit the large tract of land of John O. Prescott on the easterly side of the highway. For these reasons we hold that the restrictions imposed were covenants running with the land which were binding on the plaintiffs.
The changes in the neighborhood were not such as to entitle the plaintiffs as a matter of law to the relief sought. No changes have occurred since the plaintiffs accepted their deed in August, 1954. See Restatement, Property, s. 564. The changes prior to that date on which the plaintiffs rely have not been "so radical and complete" as to defeat the purpose for which the restrictions were imposed on Camp Dewey. 4 A.L.R. (2d) 1111, 1113, 1114.
While there was evidence of violation of restrictions imposed by John O. Prescott in his deed of the Whispering Pines property it could be found that he has not waived the restrictions.
Furthermore failure of an owner to take action for violation of restrictions in other parts of the restricted district does not preclude him of right of enforcement for a violation "in proximity to his property which would be especially and directly injurious to him." 4 A.L.R. (2d) 1111, 1114.
The record sustains the action of the court.