Hollyhock Farms, Inc. v. Schoenlaub

167 N.E.2d 128, 83 Ohio Law. Abs. 406, 11 Ohio Op. 2d 317, 1959 Ohio Misc. LEXIS 278
CourtCourt of Common Pleas of Ohio, Hamilton County
DecidedJuly 30, 1959
DocketNo. A-170386
StatusPublished
Cited by3 cases

This text of 167 N.E.2d 128 (Hollyhock Farms, Inc. v. Schoenlaub) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Hamilton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hollyhock Farms, Inc. v. Schoenlaub, 167 N.E.2d 128, 83 Ohio Law. Abs. 406, 11 Ohio Op. 2d 317, 1959 Ohio Misc. LEXIS 278 (Ohio Super. Ct. 1959).

Opinion

OPINION

By RENNER, J.:

Plaintiffs in this action are asking the Court for a declaratory judgment determining the rights of the respective parties to this action and for an order preventing the defendants from moving a house from another location to a lot on the north side of Christopal Drive in Hollyhock Subdivision owned by the defendants. They also ask the Court for an order requiring the defendants to remove a garage which the defendants have already placed upon their lot.

The individual plaintiffs are the owners of residences in which they [407]*407reside on Christopal Drive in said subdivision. The plaintiff, Hollyhock Farms, Inc., together with Mariana H. and Rudolph G. Schneidhorst, who then were the owners of the adjoining tracts of land, in the year 1949 laid out Hollyhock Subdivision, located in Springfield Township, Hamilton County, Ohio, and, on August 30, 1949, they entered into a written agreement to restrict the use of the lots in said subdivision for the benefit of themselves, their heirs, executors, administrators, successors and assigns and all future owners of any of the lots in the subdivision. This agreement recorded in Deed Book 2374, page 409, together with the proposed plat of such subdivision, recorded in 1949 in Plat Book 52, pages 20 and 21 in the Hamilton County Recorder’s Office, are both in evidence. The Schoenlaub lot was conveyed to them by deed dated October 31, 1958, which deed included a reference to restrictions and easements of record.

The petition alleges that all of the individual plaintiffs and others have erected residences in Hollyhock Subdivision comparable in value and design with other structures on the lots fronting on Compton Road in said subdivision and that the plans were submitted for approval as required in said agreement between the Schneidhorsts and Hollyhock Farms, Inc. The plaintiffs further allege that the defendants intend to move a house upon their lot, and that the defendants have already moved a garage on their lot in violation of the restrictions, by reason of which the plaintiffs and others similarly situated will suffer irreparable damage for which they have no adequate remedy at law.

For their first defense the defendants allege that the improvements which they propose to erect on the lot in Hollyhock Subdivision are comparable with other improvements on Compton Road as specified in the subdivision restrictions; that such improvements satisfy all the restrictions of the plat of said subdivision and that the plaintiffs refusal to approve their plans for the improvement of their property is arbitrary and unreasonable.

For a second defense they reiterate the allegations contained in the first defense and further state that plaintiffs have permitted the erection of other structures in the subdivision which are not comparable with the other improvements on Compton Road; that the restrictions are not part of a general plan of the subdivision and, further, that the plaintiffs have waived their right to enforce this restriction against the defendants and are thereby estopped from denying approval of defendants’ plans.

Further answering, defendants deny each and every other allegation in the petition and pray for the dismissal of plaintiffs’ petition.

The following material parts of the August 30, 1949, agreement provide as follows:

“Parcels A, B, C, D, E, F, and G shall be used for residence purposes only; no building other than one single family residence, together with a garage for not more than two cars, shall be erected or re-erected on any of said parcels.
“Parcels H, J, and K, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 shall be used for residence purposes only or for church purposes, and any improvements erected or re-erected on said parcels shall be used for church [408]*408purposes or shall be single family residences, or two family residences with a garage or garages for not more than two cars on each lot.
“All improvements erected or re-erected on the lots designated in the preceding two paragraphs must be comparable with the other structures erected on the second party’s lots fronting on Compton Road in the immediate vicinity.
“The following restrictions shall apply to parcels A, B, C, D, E, P, G, H, J and K, and parcels 1 to 25, both inclusive, to-wit:
“Plans for any improvements erected or re-erected on said parcels must be approved by Hollyhock Farms, Inc. or Mariana H. Schneidhorst or Rudolph G. Schneidhorst. All improvements erected or re-erected on any of the aforesaid parcels must be comparable with other improvements on the Compton Road parcels.”

The lot owned by the defendants and all of the individual plaintiffs are located on Christopal Drive, which runs generally east and west one square south of Compton Road, which also runs in the same general direction.

Plaintiffs’ petition does not allege in what respects the residence which the defendants intend to move onto their lot in the subdivision would violate the restrictions. Counsel for the plaintiffs, however, contend that because the defendants home is not of the Early American or Colonial design or style of architecture it is not comparable to the homes on Compton Road and it does not conform to the homes which are now on the other lots in the subdivision.

Defendant contend that the language of the restriction does not suggest that homes to be placed upon the lots in the subdivision must conform to the Early American or Colonial style of architecture and that it contains no architectural standard, criteria or limitations regulating the scope of approval.

The rights of the plaintiffs and the defendants, therefore depend upon the meaning of the words “comparable with the other structures on the lots fronting on Compton Road in the immediate vicinity.”

Counsel for the plaintiffs and defendants each offered in evidence photographs of a number of residences in the subdivision, including those on Compton Road, which were built prior to August 30, 1949. Photographs of defendants’ home is in evidence, marked Exhibit 8, and it is also included in the group, marked as Exhibit 9.

In addition to the photographic evidence of all the homes and the surroundings in the subdivision the Court visited the subdivision to view it and the homes located on the lots. The visit to the home was at the request of counsel for both parties and it was stipulated between them that what the Court observed was to be considered as evidence in the case and not alone for the purpose of better applying the evidence presented in the court room.

To support their contention plaintiffs presented as a witness, Roy M. Ayers. Mr. Ayers was the secretary of Hollyhock Farms, Inc., and as such he signed the August 30, 1949 agreement. He further testified that he alone approved all of the houses which now are erected in the Hollyhock Subdivision, as the representative of Hollyhock Farms, Inc., and that hb was one Qf the three authorized to approve-plans and that it [409]*409was he who rejected the plans of the defendants’ home when it was submitted to him for approval.

The plaintiffs called an architect, Mr. Harry J. Bothwell, to testify in their behalf as to the styles and type of architecture of the homes in the subdivision. Likewise, the defendants called Arthur J.

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Cite This Page — Counsel Stack

Bluebook (online)
167 N.E.2d 128, 83 Ohio Law. Abs. 406, 11 Ohio Op. 2d 317, 1959 Ohio Misc. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollyhock-farms-inc-v-schoenlaub-ohctcomplhamilt-1959.