Opinion
No. 174891.
1949-08-7
EDWARDS et al. v. OHIO STATE STUDENTS TRAILER PARK COOPERATIVE, Inc.
Postle & Peters, Columbus, present or behalf of plaintiffs. P. L. Thornbury, Columbus, present or behalf of defendant.
Action by John R. Edwards and others against Ohio State Students Trailer Park Cooperative, Inc., to enjoin the defendant from establishing a trailer park upon certain lots owned by it.
The Court, Randall, J., held that under the evidence the plaintiffs were not entitled to an injunction.
Judgment affirmed 88 N.E.2d 187.Postle & Peters, Columbus, present or behalf of plaintiffs. P. L. Thornbury, Columbus, present or behalf of defendant.
RANDALL, Judge.
In this action plaintiffs seek to enjoin the defendant from establishing a trailer park upon certain lots owned by it in the Braemar Addition. The case was presented to the Court upon an agreed partial stipulation of facts and the evidence.
Since our conclusions of law are predicated largely upon the facts stipulated by counsel we set forth herewith the entire stipulation of facts which is as follows:
‘Now come the plaintiffs and the defendant by their respective counsel and agree that the following facts shall be stipulated as facts in this case:
‘1. That Braemar Addition, Clinton Township, Franklin County, Ohio, contains 66 lots, Reserves A, B, and C; that said Addition is located on the east side of and adjacent to Olentangy River Road and extends southerly from Dodridge Street on the North to Argyll Street, and is three tiers of lots in depth; that a plat of lots, streets and alleys of said Braemar Addition was made and dedicated by Christina A. Hess and Benjamin C. Hess, her husband, on the 15th day of October 1925, and was filed for record on that date and duly recorded in Plat Book 17, page 94 of the Recorder's records for Franklin County, Ohio; that said recorded plat contains no restrictions of any kind whatsoever; that the plaintiffs are the owners of lots Nos. 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21 and 22 (a total of 14 lots) in said Braemar Addition, all of which lots front on the east side of Olentangy River Road south of Dodridge Street and north of Argyll Street; that the defendant is the owner of lots Nos. 23 to 33, inclusive, and 56 to 66 inclusive, being the second and third tier of lots east of Olentangy River Road and lying between Burnbrae Street on the north and Argyll Street on the south and being in the rear of lots 12 to 22, inclusive, fronting on Olentangy River Road;
‘2. That the defendant, Ohio State Students Trailer Park Cooperative, Inc., is a corporation organized on a cooperative, non-profit plan under the General Corporation Act of Ohio with its principal office located in Columbus, Franklin County, Ohio.
‘3. That prior to the 12th day of March, 1930 Christina A. Hess and her said husband conveyed lots Nos. 2, 7, 8, 9, 10, 14, 15, 17, 18, 19 and 22 by their various general warranty deeds to various persons being the plaintiffs (except lot No. 2) herein or their predecessors in title, which deeds were duly recorded and contained the following restrictions:
“Provided, however, and these presents are upon this condition which is also part of the consideration for the sale and conveyance of said premises; that neither the Grantee herein, his heirs, executors, administrators or assigns, nor any one claiming or holding under him, shall ever erect or maintain on said premises any buildings except one single dwelling house with necessary outbuildings, which shall cost not less than $8,000.00, nor shall the front wall of said dwelling house be nearer to the Olentangy River Road than sixty (60) feet, and no portion of said building shall be erected nearer to the side lot line than three (3) feet; provided further that neither the said Grantee, his heirs, executors, administrators and assigns, nor any one claiming, or holding under him, shall ever sell, rent, lease, convey or in any way permit the said premises to be occupied by any person with an admixture of African or negro blood in his or her veins except that such persons may reside in said houses as servants or employes, working for the family who owns or occupies said premises, that neither the said Grantee, his heirs, executors, administrators and assigns, nor any person claiming or holding under him shall manufacture, sell or give, away any intoxicating or malt liquors of any kind whatsoever on or from said premises.
“The foregoing covenants and conditions, shall attach to, and form a part of, the deeds or other instruments affecting the title to said premises, and are and shall be held to be covenants running with the land the Grantee, for himself, his heirs, executors, administrators, and assigns, agrees and covenants that the said restrictions and conditions are for the benefit of all of the property in the said addition, and that the violation of any of the said covenants and conditions shall constitute an irreparable injury and the the violation thereof may be restrained and enjoined in a court of proper jurisdiction.
“The restrictions above mentioned calling for one single dwelling house shall be interpreted, among other things, to exclude double houses, duplexes and apartment houses.
“It is hereby covenanted and agreed between the grantors, their heirs and assigns, and the grantee, his heirs and assigns that in all of the deeds for the lots facing on the Olentangy River Road numbered from two (2) to twenty-two (22), inclusive of the said Braemar Addition, there shall be included restrictions identical with those contained in this deed and in the deeds for all other lots in said Addition, exclusive of Reserve ‘C’ and Lot Number One (1), there shall be restrictions calling for one single dwelling house and in all of the other lots in said addition including Reserve ‘C’ and Lot Number One (1) there shall be restriction against the sale to, or occupancy by, a person of negro blood.' but that no other lots in said Addition have been conveyed by deed containing said restrictions; that lots Nos. 12, 16 and 66 were conveyed by Christina A. Hess and her said husband to various persons without any restrictions or conditions whatsoever in said deeds; that John H. Hislop (acquired title without restrictions from Hess) conveyed to the plaintiffs Hubert E. Brown and Elizabeth M. Brown Lot No. 21 by deed of record in Deed Book 1254 at page 584 in said Recorder's office and Lot No. 11 was conveyed to Maxine R. Weingarth by deed of record in Deed Book 1174, page 246, which deeds contained the following:
“This deed is executed and delivered by the grantors herein and is accepted by the grantees herein subject to all conditions, easements and restrictions contained in any former instrument affecting the hereinabove conveyed premises.'
‘4. That Christina A. Hess and her said husband by deed dated March 12, 1930 duly recorded in Deed Book 938 at page 415 of said Recorder's office conveyed to John H. Hislop the remaining lots in said Braemar Addition, being lots Nos. 3, 4, 5, 6, 11, 13, 20, 21 and 23 to 65, both inclusive, and said three reserves in said Addition which said deed for 51 lots and said reserves expressed no conditions or restrictions and made no reference to conditions and restrictions in former deeds, if any; that this defendant acquired its title to lots 23 to 33, both inclusive, and 56 to 66, both inclusive (the land involved in this case) from said John H. Hislop by warranty deed dated March 17, 1948 and recorded in Volume 1427, page 11 of the Recorder's records for Franklin County, Ohio, which said deed expressed no restrictions; that Christina A. Hess and her said husband were the owners of said lots prior to the conveyance thereof by them to John H. Hislop and at the time she and her husband filed said plat for recording on October 15, 1925; that prior to the date of the recording of the plat of said Braemar Addition there were no restrictions on any of the lots shown on the said plat and included in Braemar Addition;
‘5. That the owner of lot No. 3 fronting on Olentangy River Road is conducting a fruit and vegetable market thereon in a combination store and dwelling but there is pending in this court an action by four of the plaintiffs for their benefit and all other lot owners on Olentangy River Road to enjoin such usage of lot No. 3; that at the time this action was filed trailer space was rented to three housetrailers which were parked on lot No. 5 and two house trailers which were parked on lot No. 6 both of which lots front on Olentangy River Road but that the plaintiffs now have an injunction action pending against the owner of said lots 5 and 6 to enjoin the use of said lots for the parking of house trailers; that since the recording of said plat in 1925 six dwellings in addition to the building on lot 3 have been built on the lots fronting on Olentangy River Road and that none of the lots 23 to 66, both inclusive, back of the lots fronting on Olentangy River Road have ever been used for dwelling purposes, all of said lots having remained unimproved since the recording of said plat in 1925.’
We adopt the above stipulatiion of facts as findings of facts in this case and upon consideration of the evidence and the stipulation of counsel for the defendant appearing at page 15 of the transcript, find that defendant before the conveyance to it of the lots in question had actual knowledge of the restrictions contained in the eleven lots referred to in paragraph three of the stipulation of facts, which restrictions were as specified in said paragraph three. In this finding we have assumed that knowledge of counsel for defendant participating in the negotiations for the purchase of said lots and knowledge of Mr. Taft, the President of the defendant company, should be and is imputed to defendant. In this connection it is a general rule that whatever puts a party on inquiry amounts in judgment of law to notice, providing the inquiry becomes a duty and would lead to a knowledge of the facts by the exercise of ordinary intelligence and understanding. See 46 C.J. 543; Wilkins v. Jernigan, 195 Ark. 546, 113 S.W.2d 108;Myers v. Crenshaw, Tex.Civ.App., 116 S.W.2d 1125;United States v. Sliney, C.C., 21 F. 894. This rule is referred to in the case of Davidson v. Buckeye Homes Inc., 11 Ohio Supp. 54, a case arising in this Court involving a question of notice of building restrictions.
We further find from the evidence and the stipulation of facts that there has not been such a radical change of the character of the neighborhood in question as to destroy the value of the restriction in question to the plaintiffs if the same are otherwise enforceable.
We further find from the evidence and the stipulation of facts that there has been no such violation of the alleged restrictions or acquiescence in violation by others thereof as would show that plaintiffs have waived said restrictions or that they are estopped to assert the right to enforce the same, nor have they been guilty of such laches or delay which would preclude them from the relief sought, if said restrictions were otherwise enforceable.
We further find that the alleged 5th defense set forth in the answer of the defendant under the evidence adduced in this case is not a valid defense to the action for injunction. In the first place, assuming that all legal steps were taken in the proceedings to vacate the portion of the plat in question still in our opinion the effect of such a decree of vacation would not be to obliterate or destroy said restrictions as to the use of said premises. Furthermore, case No. 174523 in this Court in which it was sought to vacate the part of the allotment owned by defendant is still pending upon motion to set aside the decree vacating said premises.
The remaining question in this case in view of the stipulation of the parties as to the facts, is whether or not as a matter of law the restrictions are enforceable at the instance of the plaintiffs in this case against the defendant. This inquiry has led us into the examination of many authorities not only in this State but in other jurisdictions. However, we have been impelled to return to consideration of decisions of the Supreme Court of Ohio for a solution of the immediate problem before us.
In the case of Brown v. Huber et al., 80 Ohio St. 183, 88 N.E. 322, 28 L.R.A.,N.S., 705 the first proposition of the syllabus is as follows: ‘A covenant in a deed of conveyance, whereby the grantor, in part consideration for said conveyance, stipulates and agrees for himself, his heirs and assigns, touching and concerning an adjacent lot which he then owns, ‘that the only building put upon said lot shall be a residence and the necessary attachments, and that it shall be used for no other purposes than that of a family residence, and shall cost not less than $5,000 for the residence alone,’ is a covenant binding on the grantor and all persons claiming under him with notice of the same, and its observance may, in equity, be enforced by injunction.'
Standing alone this general statement of the law tends to establish the rule for which the plaintiffs contend, to-wit, that of an equitable negative easement. In other words this syllabus standing alone would seem to announce the principle that where the grantor as a prt of the consideration for his conveyance agrees for himself, his heirs and assigns that other premises owned by him adjacent thereto shall be used only in a certain manner, a servitude is established and impressed upon the land retained by him for the benefit not only of the grantee, but anyone claiming under him with notice of the same and may be enforced by injunction. The facts in that case were that one Scott the owner of land in Toledo, Ohio, platted the same into nine lots in the name of Barnett T. Scott's First Addition. No restrictions were placed upon any of the lots excepting lots Nos. 1 and 2 and no general plan of improvement was intended or undertaken by Mr. Scott. Scott conveyed lot No. 3 to one Mary I. Kelley and in deed of conveyance included the following covenant: ‘The said Barnett T. Scott hereby covenants and agrees for himself, his heirs, assigns, executors, and administrators, that neither he, his heirs or assigns will at any time erect upon lot Number Two (2) of said Scott's First Addition to the City of Toledo, thereon, any building nearer than sixty (60) feet to the southwesterly line of Adams Street, and that the only buildings put upon said lot shall be a residence, and the necessary attachments, and that it shall be used for no other purpose than that of a family residence and shall not cost less than 5,000 Dollars for the residence alone.’
This deed was duly recorded. Later Scott conveyed to the said Mary I. Kelley twenty feet off the northerly side of lot No. 2, lying contiguous thereto. Sometime later Scott conveyed the remainder of lot No. 2 and the northwesterly twenty feet of lot No. 1 to one Samuel B. Wood. In this deed to Wood the following clause was inserted: ‘Subject, however, to all the conditions as to location of building, etc., contained in the deed from said Scott to Mary I. Kelley of Lot 3 in said Addition. And said Scott also hereby makes the same agreement for himself, his heirs, assigns, executors, and administrators concerning so much of Lot 1 as remains in him after this conveyance as is contained in said last mentioned deed.’
This deed was duly recorded. Scott from time to time sold all the property in the addition without placing any building restrictions whatever on any of the lots except lots Nos. 1 and 2 above mentioned. Mary I. Kelley erected one large residence upon lot No. 3. This lot and residence was later acquired by the plaintiff. The premises deeded by Scott to Wood consisting of the southeasterly eighty feet of Lot No. 2 and the northwesterly twenty feet of Lot No. 1 in which Wood bound himself to observe the covenant of the grantor in the deed from Scott to Kelley with reference to the use of lots Nos. 1 and 2 were acquired by Wood's wife through his will and were conveyed by the trustee of Mrs. Wood's estate to the defendant Roger Huber. Brown, the plaintiff, proceeded to erect more than one residence on lot No. 2. Before these residences were completed Brown notified Huber of the terms of the building restrictions imposed by Scott the original subdivider for the benefit of Mary I. Kelley, Brown's predecessor in title, and stated to him that the same would be enforced by Brown. It will be noted that Brown's predecessor in his chain of title had bound himself to observe these restrictions. Injunction suit was filed by Brown to restrain the alleged violation of the restrictions by Huber. The trial court found for the defendant. Upon appeal the Circuit Court affirmed the judgment of the Common Pleas Court. However, the Supreme Court reversed that decision and allowed the injunction to issue. In the opinion of Judge Crew he found that the covenant contained in the deed of defendant's predecessor in title was one running with the land. However, he further found that it was not important to determine whether or not the covenant was one running with the land and we quote from 80 Ohio St. at page 204, 88 N.E. at page 326: ‘We think the rule upon this subject, as clearly established by the authorities, is that, when the action is in equity to enforce a restrictive covenant controlling the use or enjoyment of land, the vital question is, not whether there is a covenant running with the land, but whether the restriction asserted and relied on was one imposed upon the servient estate for the benefit of the land in behalf of which it is sought to be enforced * * *. And we apprehend the rule is the same, whether the restriction imposed is charged upon the land conveyed, or upon land retained by the grantor.’
Judge Crew quotes from the case of Coughlin v. Barker, 46 Mo.App. 54, as follows: ‘The question whether the covenant runs with the land seems to be material in equity only on the question of notice. If the covenant runs with the land, then it binds the owner of the land, whether he had knowledge of it or not, for he takes no greater title than his predecessors had to convey; but if the covenant does not run with the land, but the land is subject to what is sometimes called an ‘equity,’ and at other times a ‘negative easement,’ in favor of the adjoining land, then, in order to enforce this easement against the land, it is essential that the owner should have taken the land with notice of it. Tulk v. Moxhay, 2 Phil.Ch., 774. We understand, then, that it is a principle upon which all the courts unite that the right to equitable relief in these cases depends upon the following considerations: First. A precedent agreement, in some form, by which a restriction is imposed upon the lot owned or held by defendant for the benefit of the lot owned or held by the plaintiff. Second. In case the agreement is made by the defendant's predecessor in title, notice in some form to the defendant of the fact and nature of the agreement, either from the language of the title deed under which he holds, or otherwise.'
A court also quotes from the case of Tulk v. Moxhay, 2 Phil.Ch. 775, an English case, the following: ‘It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.’
It will be noted that the principle of law stated in the first syllabus of Brown v. Huber is broad enough to cover a situation even where there were no restrictions whatsoever imposed upon him in his conveyance or upon any of the grantees in his particular chain of title. The fact is however that in the Huber case the restrictions were included in a conveyance in the chain of title of the defendant.
In our consideration of many authorities outside of Ohio we have found that the general principles announced in the first proposition of the syllabus of the Huber case are frequently stated.
In the case of Dixon v. Van Sweringen Co., 121 Ohio St. 56, 166 N.E. 887, cited by counsel for plaintiff the Court found that a general building scheme or plan for the development of a tract of land had been adopted and that restrictive agreements were to be imposed upon each of the separate lots sold. In that case it will be noted that the action for injunction was brought by the owner of the lot whose conveyance as well as the conveyance of her predecessors in the chain of title contained tained the restrictions in question and the action was against the original grantor or sub-divider and not against the grantee of the original sub-divider. Furthermore, apparently all of the lots in the sub-division contained the restrictions in question. At page 70 of 121 Ohio St., at page 891 of 166 N.E. Judge Day quotes from the case of Whitney v. Union Railway Co., 11 Gray, Mass., 359, 71 Am.Dec. 715, as follows: ‘The more difficult question, and the one on which the decision of this case must turn, is, to what extent and in what cases are such stipulations binding on those who take the estate under the grantee, directly or by a derivative title? Upon this point, the better opinion would seem to be that such agreements are valid, and capable of being enforced in equity against all those who take the estate with notice of them, although they may not be strictly speaking real covenants, so as to run with the land, or of a nature to create a technical qualification of the title conveyed by the deed. This opinion rests on the principle that, as in equity that which is agreed to be done shall be considered as performed, a purchaser of land, with notice of a right or interest in it, subsisting in another, is liable to the same extent and in the same manner as the person from whom he made the purchase, and is bound to do that which his vendor had agreed to perform. Therefore an agreement or covenant, though merely personal in its nature, and not purporting to bind assignees, will nevertheless be enforced against them, unless they have a higher and better equity as bona fide purchasers without notice. It is on this ground, that a purchaser of an estate, taking it with notice of a prior agreement by the vendor to sell it to another, can be compelled in equity to convey it according to such agreement. In like manner, by taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the mode of occupation and use of the estate granted, the purchaser is bound in equity to fulfill such agreements with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendor in regard to the estate, of which he had notice when he became its purchaser. In this view, the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land. A personal covenant or agreement will be held valid and binding in equity on a purchaser taking the estate with notice. It is not binding on him merely because he stands as an assignee of the party who made the agreement, but because he has taken the estate with notice of a valid agreement concerning it, which he cannot equitably refuse to perform.’
The Court further quotes from page 365 of the opinion of Whitney v. Union Railway Co., 11 Gray, Mass., 359, 71 Am.Dec. 715: ‘When therefore it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, and originally forming with the land conveyed one parcel, such right will be deemed appurtenant to the land of the grantor and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subsequent grantees of the respective lots of land.’
While the principles set forth in the foregoing quotations cited by Judge Day in his opinion are in the nature of dicta since the action in the case he was considering was against the original owner or sub-divider who first made the covenant and for the further reason that the action was brought by one who had bought his land along with others who were uniformly bound by the same covenant, we call attention to these citations since they accord with our own individual opinion as to what the rule should be in this case were it not for a decision of the Supreme Court of Ohio to which we will presently refer. It would seem that no purchaser of a lot in a real estate subdivision should be permitted to take advantage of a failure of the allotment owner to observe his solemn covenant with the purchasers of other lots, that in the future sale of the lots retained by him, he would impose restrictions for the benefit of all purchasers of lots in the subdivision. In the instant case the deeds to the plaintiffs bound the original subdividers to include in all deeds of other lots in the subdivision the covenant restricting the use thereof to one single residence. The original intention of Christina A. Hess and her husband as declared in her solemn covenants in deeds to the plaintiffs and predecessors in title, was that for their protection all of the lots now owned by the defendant should be restricted to the use of one single dwelling house. It would seem that in equity all persons having knowledge of the covenant between the Hesses and the plaintiffs and their predecessors in title in this case should in good faith be bound to respect that covenant whether or not, in the deed of conveyance to them, such restrictions were mentioned.
We come now however to the consideration of the case of Adams v. Donovan, 97 Ohio St. 83, 119 N.E. 252 which apparently stands unreversed by the Supreme Court of Ohio. We quote from the per curiam opinion as follows:
‘Where a general plan of uniform restrictions has been adopted by the owners of an allotment, and such a plan publicly and generally advertised, and the owners covenant that all sales of lots in that allotment will be made subject to these restrictions, which restrictions shll be for the protection of every other person who may become the owner of a lot in that allotment, as well as the grantors, such restrictive covenants may be enforced by injunction. Before such restrictions can be enforced against a purchaser whose deed does not contain such restrictions, it must clearly appear by the evidence that there was such a general plan of uniform restrictions upon all the lots in the allotment; that the deeds for lots in such allotment uniformly contained such restrictions; and that the purchaser had knowledge of such general plan of uniform restrictons at the time he purchased his lot.’ (Emphasis ours.)
We quote further from the opinion: ‘Where it appears from the evidence in a suit to enforce restrictions not contained in his deed, against a purchaser of a lot in an allotment, that 79 lots out of a total of 143 lots in the allotment contained no such restrictive covenants in accordance with the plan of uniform restrictions averred in the petition, an injunction will be refused, regardless of the fact that when some of these deeds were executed a private agreement was made between the owners of the allotment and the purchaser of the lot that when the purchaser conveyed the same to another person he would write into the deed of conveyance restrictions in conformity with the general plan.’
Although in the above case the question of notice was involved, the Court finds that the mere fact that a lot owner in an allotment notified a proposed purchaser of a lot in the same allotment that the use of the lot he proposed to purchase was restricted to single residence purposes only, did not establish notice to the defendant of a general plan of uniform restrictions upon every lot in the entire allotment. However, the Court proceeds to point out, that even if the defendant had notice, an injunction should not issue against him and we quote further from the opinion: ‘If, however, such notice were sufficient to put the purchaser upon inquiry, his examination of the deed records of Cuyahoga County would have disclosed that of the 143 lots in this allotment 37 had been conveyed to Annie B. Helwick, 27 to Don S. Helwick, 12 to I.I. Elworthy, 2 to Edward J. Gillespie, and 1 to Albert J. Labarger, by deeds containing no restrictions whatever as to their use or the nature of the buildings that might be erected thereon, and that the deed to this lot in question from the owners of this allotment to his immediate predecessor in title contained the restriction that ‘said premises shall be used only for residence and mercantile purposes.’'
Apparently the Supreme Court considered that although a uniform plan of development was intended by the allotment owners it was not carried out by uniformly including the restrictions in subsequent conveyance of more than one half of the lots in the allotment. The factual situation is identical with the instant case.
Applying the conceded facts in the instant case to the decision in Adams v. Donovan, supra, we find that in the deeds to the plaintiffs in this case the grantors solemnly covenanted that with the exceptions of lot No. 1 and reserve ‘C’ of the allotment, they would in the conveyance of all other lots in said addition subject the same to restrictions calling for one single dwelling house. However, the conceded facts in this case further show that plaintiff's grantors breached the covenants made by them in their deeds to plaintiffs, by conveying all other remaining lots in said subdivision without including therein the covenant wherein they had agreed with the grantees in the first eleven lots sold that in the sale of all other lots the deed should contain restrictions calling for one single dwelling house.
The evidence discloses that of the 66 lots contained in the subdivision in which the owners of the original allotment agreed to include said restrictions they were included in but eleven lots and that 55 of said lots were sold without any restrictions whatsoever. The original platters of said allotment sold to John H. Hislop, defendant's immediate predecessor in title, 51 of said lots without including therein any restrictions of any kind or character whatsoever. Hislop conveyed to the defendant 22 of said lots, being the land in question in this case without including therein any restrictions as to the use of said premises of any kind or character. The deed to these lots however did contain a clause stating that said conveyance was accepted by the grantee ‘subject to all easements, exceptions and conditions of record affecting the above described premises'.
Referring again to the per curiam opinion in the case of Adams v. Donovan, supra, we might paraphrase the words of the opinion by stating that where it appears from the evidence in a suit to enforce restrictions not contained in his deed, against a purchaser of a lot in an allotment that 55 lots out of a total of 66 lots in the allotment contained no such restrictive covenants in accordance with the plan of uniform restrictions referred to in the petition, an injunction will be refused, regardless of the fact that when some of these deeds were executed an agreement was made between the owners of the allotment and the purchasers of the lots that when the purchasers conveyed the same to another person he would write into the deed of conveyance restrictions in conformity with the general plan. In all essential points the facts in the instant case are very similar to those in Adams v. Donovan. In fact a much greater proportion of the lots in the instant case were conveyed without any restrictions whatsoever than in the case of Adams v. Donovan. In this case a full knowledge of the contents of the first eleven deeds executed by the Hesses would reveal to defendant that of the 66 lots in said allotment 55 had been conveyed to others by deeds containing no restrictions whatever as to their use or the nature of the buildings that might be erected thereon. We have heretofore found that the defendant before the conveyance to it did have knowledge of the restrictions contained in the first eleven deeds which are relied upon by plaintiffs as evidence of a uniform plan of development. While the opinion in the case of Adams v. Donovan does not specifically refer to the case of Brown v. Huber supra, we assume that the court in considering that case distinguished the holding therein because of the fact that the restrictions in question in that case were specifically set forth in a conveyance by the owners of the allotment to defendant's predecessor in the immediate chain of title.
We have considered the cases cited by plaintiffs in oral argument and have already referred to the case of Dixon v. Van Sweringen Co., 121 Ohio St. 56, 166 N.E. 887;Brown v. Huber, 80 Ohio St. 183, 88 N.E. 322, 28 L.R.A.,N.S., 705; Adams v. Donovan, 97 Ohio St. 83, 119 N.E. 252. Plaintiffs cite also the case of Hillman et al. v. Belt & Terminal Realty Co. et al., 19 Ohio Cir.Ct.R., N.S., page 330. In that case the plat of the allotment was never recorded but it was contended by the plaintiffs who sought an injunction that the original owner of the allotment had laid the same out upon a general plan of improvement and he proceeded to sell the lots in the subdivision to various persons upon the representation and promise that all of the lots in said allotment should be sold and used for residence purposes only, and that certain of said lots were sold by him to the plaintiffs, or their predecessor in title, upon the express understanding that they should be used for residence purposes only, and that all the remaining lots in the allotment, all of which were then owned by him, should be sold and used for residence purposes only and that the plaintiffs, in reliance upon said plan and in accordance with said agreement, have improved their respective lots with buildings used exclusively for residence purposes. In fact none of these restrictions were included in the deed to any lot in the allotment. The court found that the evidence relied upon to establish the restrictions was insufficient and refused to enjoin the deendant.
The court 19 Ohio Cir.Ct.R.,N.S., at page 333 of the opinion in that case cites the general rule stated in 6 Harvard Law Review, page 280 which tends to sustain plaintiffs' theory of an equitable negative easement and is a very good concise statement of the negative easement theory. It will be noted that in the statement of said rule no prerequisite is laid down that other lots be actually sold subject to said restrictions, as was held in Adams v. Donovan, supra.
The case of Kiley v. Hall, 96 Ohio St. 374, 117 N.E. 359, L.R.A.1918B, 961 is also cited by plaintiffs. In that case a grantee in a deed containing certain restrictions sought to enjoin his grantor from violation of the restrictions. There was a direct privity of contract between the parties. The essential holding in that case was that even though the purchaser of a lot takes his deed subject to restrictions as to the use of the same he is not chargeable from that fact alone with notice that like restrictions are contained in the deeds to other purchasers of lots in the allotment. The Court simply held that an injunction would not issue to enforce the observance of restrictions contained in the deed of another lot owner unless it appeared that the other lot owner bought his lot with notice of a general plan for the improvement of the lots of the allotment in accordance with the restrictions contained in his deed, or unless he had notice that such restrictions were included in his deed for the benefit of the owners of the other lots in the allotment. Incidentally, it appeared in said case that in all the deeds from the original allotters for the lots in the allotment there were restrictions identical with those contained in the deeds to the plaintiff in error with the exception of two lots. The court refused to enjoin for the reason that the evidence did not show that defendant was charged with knowledge that the restrictions contained in his deed were also incorporated in the deeds to other purchasers of lots in the allotment.
Counsel for plaintiff has cited from 14 Am.Jur. page 659. We have already discussed the principles of law therein referred to in our reference to the case of Brown v. Huber, supra.
In the case of Wallace v. Clifton Land Co., 92 Ohio St. 349, 110 N.E. 940, the distinguishingfeature in that case is that apparently the restrictions had been actually imposed on all lots sold in said allotment and had been generally observed by the owners of said lots. Furthermore in that case a general plan of allotment had been adopted by the company which provided for the restriction of all sub-lots in said allotment for use of residence purposes only, and it was held out to the purchasers of lots that similar restrictions would be placed in all deeds to lots in the allotment.
In conclusion we summarize our findings and conclusions as follows:
(1) The original allotters of Braemar Addition express an intention in the first eleven deeds executed by them to plaintiffs and their predecessors in title that all of the lots in the subdivision with the exception of certain reserves should contain restrictions limiting the use of said lots to one single dwelling house.
(2) The defendant in this case had actual knowledge of the restrictions contained in the deeds to plaintiffs and their predecessors in title.
(3) The original allotters breached the covenant entered into by them with the plaintiffs and their predecessors in title by failing to include said restrictions in all the remaining lots of said allotment. They sold 55 lots out of 66 in said allotment without inserting any restrictions whatsoever.
(4) No restrictions whatsoever were inserted in the deeds to defendant of the lots concerning which this injunction is sought.
(5) There was no evidence of a general and uniform plan of development of said allotment except as indicated in the deeds to plaintiffs and their predecessors in title of the first eleven lots.
(6) We further find that the 3rd, 4th and 5th defenses set up in defendant's answer are invalid defenses under the evidence if the restrictions were otherwise enforceable by plaintiffs.
(7) If the restrictions were otherwise enforceable the evidence is sufficient to establish pecuniary injury to plaintiffs and even in the absence of such evidence damage would be presumed.
(8) Under the rule of state decisis we are bound to follow the decisions of the Supreme Court of Ohio and in our opinion the case of Adams v. Donovan, supra, lays down one specific prerequisite to the issue and of an injunction under circumstances shown by the evidence in this case to-wit, that it must appear that the deed for lots in the allotment in question uniformly contain the restrictions and that irrespective of notice an injunction will not be allowed where this condition has not been fulfilled. The petition will be dismissed and the temporary restraining order dissolved at plaintiff's costs.
Since we have given careful consideration to the legal phases of this case by extended research and inasmuch as our decision is predicated upon facts which are not in dispute, a motion for new trial, if made, may be considered as overruled. In the event plaintiffs desire to appeal the appeal bond will be fixed in the sum of $2500 which was the amount of the bond required upon issuance of the temporary restraining order herein. Exceptions.