Opinion
16476.
FEBRUARY 17, 1949.
Injunction. Before Judge Hendrix. Fulton Superior Court. October 25, 1948.
Smith, Kilpatrick, Cody, Rogers McClatchey, and Sidney Haskins, for plaintiff in error.
Dudley Cook, Alex McLennan, Hugh Burgess, and Julius McCurdy, contra.
A covenant in a deed, that the land thereby conveyed "shall not be used otherwise than for residence purposes, and shall not be used for a sanatorium, hospital or infirmary, and no apartment is to be erected thereon," would be violated by the maintenance and operation of a college fraternity house as a gathering place for its members wherein the members hold fraternity meetings, stage initiations into the fraternity, hold dances, rush parties, and other forms of entertainment, and where there is located on the first floor a storeroom, numerous radios, a soft-drink vending machine, and where other items of merchandise are offered for sale to those present in the house from time to time, and where there has been erected in front of the house a large neon sign, and the lights inside the house and the neon sign are kept burning at all hours of the night while the occupants engage in dancing and other activities.
No. 16476. FEBRUARY 17, 1949.
N. B. Henry filed his petition in the Superior Court of Fulton County, Georgia, alleging: that the defendant, Mu Chapter Building Fund Inc., is a corporation duly chartered by the Superior Court of Fulton County, and subject to the jurisdiction of that court; that the plaintiff had on July 8, 1925, purchased and was still the holder of the fee-simple title to a described tract of land in DeKalb County, Georgia, and being improved property known as No. 1354 Emory Road, N.E., and that such property was occupied by the plaintiff and his family; that on May 10, 1948, the defendant purchased or agreed to purchase a described tract of land in DeKalb County, Georgia, being improved property known as No. 1351 Emory Road, and that such improved property purchased or agreed to be purchased by the defendant "is now occupied and used by the Tau Epsilon Phi Fraternity"; that the lot owned by the plaintiff and lot purchased by the defendant are located in the subdivision known as Druid Hills, Emory Section; that the lot owned by the plaintiff and lot purchased by the defendant were sold and conveyed subject to certain restrictions which, it was alleged, were binding upon the defendant and the plaintiff for a period extending to January 1, 1950, among which alleged restrictions was the following: "I. Said land shall not be used otherwise than for residence purposes, and shall not be used for a sanatorium, hospital or infirmary, and no apartment is to be erected thereon."
The plaintiff further alleged: That the right was expressly reserved by the owner of any lot in the subdivision to proceed by law or in equity to compel the compliance with the restrictive covenants which he contended were affixed to and ran with the lots in said subdivision; and that the plaintiff purchased his own property in said subdivision relying upon the restrictive covenants and his right to enforce the same under the following provision contained in the deeds conveying the said lots:
"Said lot is sold with the foregoing restrictions, which are conditions of the sale, affixed to and running with the land, and for a violation of the terms thereof or any of them, by the said Albert H. Bailey or any person holding or claiming by, under or through him, the right is expressly reserved to the said Druid Hills and its successors and assigns, or the owner of any lot in said subdivision to proceed by law or in equity to compel the compliance with the terms hereof. The failure to promptly enforce these restrictions and conditions shall at no time bar their enforcement, but in spite of any and all delays the said Druid Hills, its successors and assigns, may at any time enforce each and all of these restrictions and provisions."
That the lot owned by the defendant was being occupied and used by the Tau Epsilon Phi Fraternity for "what is commonly termed a fraternity house"; that in so using said property, the fraternity was "holding or will hold fraternity meetings therein, is staging or will stage initiations into said fraternity, and is holding or will stage initiations into said fraternity, and is holding or will hold dances, rush parties and other forms of entertainment in said house"; that the occupants of the defendant's property had located on the first floor a storeroom, numerous radios, and a soft-drink vending machine, and were offering for sale other items of merchandise to those who may be present in said house; that there had been erected in front of the defendant's property a large neon sign; and that the lights inside the house and the lights on said neon sign were kept burning through all hours of the night while the occupants of the house engaged in dancing and other activities.
The plaintiff further alleged that such uses of the defendant's property were in direct violation of the restrictive covenant contained in the deed thereto; that, unless the defendant was enjoined and restrained from so using its property, the plaintiff and other lot owners in said subdivision would suffer irreparable injury and damage, and the value of their property would greatly depreciate; and that he had no adequate remedy at law.
The plaintiff prayed that a rule nisi issue requiring the defendant to show cause why it should not be temporarily enjoined from violating the alleged restrictive covenant, and that at a final hearing the defendant be permanently enjoined from using said property in violation of the restrictive covenant set forth in the petition, and for process.
The defendant filed timely general and special demurrers and also an answer. The grounds of general demurrer were: (1) that no cause of action was set forth or alleged in the petition; and (2) because the petition showed on its face that the premises owned by the defendant were being used for residence purposes and were not used for a sanatorium, hospital or infirmary, and that no apartment house has been or will be erected thereon, and that the facts of the petition showed clearly that there was no violation of the restrictive covenant set forth in the petition.
The defendant demurred specially to paragraphs 10 and 11 of the petition, and moved that the said paragraphs be stricken, for the reason that they were too vague, uncertain, and indefinite to apprise the defendant of what the plaintiff intended to prove by said paragraphs; and for the reason that the plaintiff failed to point out or explain what use was being made of said property by the defendant, or when fraternity meetings had been held at said premises, or how many meetings had been held there, or how often said meetings had been held, or how many initiations had been staged on the premises, or when or how many dances had been held there, or when or how many rush parties had been held on the premises, and what other forms of entertainment, if any, had been held thereon.
The defendant further demurred specially to paragraph 12 of the petition and moved that the same be stricken, for the reason that the allegations of said paragraph were too vague, uncertain, and indefinite to inform the defendant what the plaintiff intended to prove thereby; and for the further reason that the plaintiff failed to allege what items of merchandise were being offered for sale in said premises or when or to whom such alleged sales had been made.
The general and special demurrers of the defendant came on to be heard and the trial court passed the following order: "The within and foregoing general and special demurrers came on for a hearing in regular order, after argument had thereon, it is ordered that said general and special demurrers be and the same are hereby overruled. This October 25, 1948." To this order the defendant excepted.
It appears that the precise question here presented has not heretofore been passed upon by the courts of this State. While this court, by divided opinion, held in John Hancock Mutual Life Insurance Co. v. Davis, 173 Ga. 443 ( 160 S.E. 393), that the identical restrictive covenant here involved was not violated by the operation of a boarding house, that ruling is not controlling here, for the reason that in that case there were no such allegations as appear in the present petition — to the effect that the owner of the property, in the use of the house as a college fraternity house, was holding fraternity meetings therein, was staging initiations into the said fraternity, was holding dances, rush parties, and other forms of entertainment in the house; that the occupants have located on the first floor a storeroom, numerous radios, and a soft-drink vending machine, and are offering for sale other items of merchandise to those present in the house from time to time; that there has been erected in front of the house a large neon sign, and that the lights inside the house and the neon sign are kept burning at all hours of the night, while the occupants thereof engage in dancing and other activities. And the same thing might be said of David v. Bowen, 191 Ga. 467 ( 12 S.E.2d 873), wherein it was held that the restrictive covenant there involved was not violated by the owner occupying the house as a residence and home and in using it as a boarding house from which she earned her livelihood.
Under the allegations of the petition in the instant case, with reference to the activities in and around a fraternity house, it partakes more of the nature of a club house with recreational and entertainment facilities, and a gathering place for its members. In City of Lincoln v. Logan-Jones, 120 Neb. 827 ( 235 N.W. 583), it is held: "Buildings used by college Greek letter fraternity as chapter house held not `residence' permitted within exclusive residential district established by zoning ordinance." See also Pettis v. Alpha Alpha Chapter of Phi Beta Pi, 115 Neb. 525 ( 213 N.W. 835); Hannan v. Harper, 189 Wis. 588 ( 208 N.W. 255. 45 A.L.R. 1119).
Activities described in the petition, when engaged in by exuberant and hilarious young people, might reasonably be said to constitute a decided disturbance to the peace and quiet of a sedate and elderly group of peaceful citizens in a strictly residential neighborhood, seeking, by such a restrictive covenant as that here involved, protection from the noise, bustle, and confusion which necessarily surrounds places where young people gather together for the enjoyment of activities of the kind described. What is here said is not, by any means, intended as a criticism of such activities or of the exuberance and hilarity of the young people, for it is only natural and to be expected, but it should be confined to a place not prohibited by a restrictive covenant. In the argument of counsel for the defendant the question is asked, if the court can hold that a fraternity house in which its members lodge and reside is less a residence than a boarding house. That such premises will be used for lodging and residence by the members of the fraternity does not appear from the petition, but only from the answer, the allegations of which can not be considered on demurrer to the petition. If it appeared that the only use to which the fraternity house was to be put by its members was for lodging and residence, the ruling might be different. The question here presented is whether the petition stated a cause of action for the injunctive relief sought. Taking as true, for the purpose of the demurrer, the allegations of the petition as to the nature and character of the particular fraternity house here involved, the way and manner in which it is maintained, and the various activities of its members and guests, as described in the petition, we hold that its maintenance and operation as alleged would constitute a violation of the covenant providing that the premises "shall not be used otherwise than for residence purposes."
The special grounds of demurrer insisted upon by counsel for the defendant call upon the plaintiff for more specific allegations as to when and how many fraternity meetings were being held at the premises and how often said meetings were held; when and how many initiations had been staged; when and how many dances had been held; when and how many rush parties had been held, and what other forms of entertainment had been held; what items of merchandise were being or had been sold or offered for sale in the premises, when such sales had been made, and to whom such sales had been made. The petition alleged generally the activities which the plaintiff insisted the defendant and its members were engaged in and carrying on at the fraternity house. The frequency with which the various activities occurred, the kind of merchandise, and the persons to whom sold, are matters peculiarly within the knowledge of the defendant, and the plaintiff is not required to plead his evidence. The allegations as made sufficiently inform the defendant of the nature and character of the acts and matter complained about, and no more specific allegations were necessary. Bittick v. Georgia, Florida Alabama Ry. Co., 136 Ga. 138, 139 ( 70 S.E. 1106); Atlantic Ice Coal Co. v. Reeves, 136 Ga. 294 (3) ( 71 S.E. 421, 36 L.R.A. (N.S.) 1112); Busby v. Marshall, 3 Ga. App. 764 ( 60 S.E. 376); Steed v. Harris, 52 Ga. App. 581 (1) ( 183 S.E. 847).
The trial court properly overruled both the general and special demurrers.
Judgment affirmed. All the Justices concur.