Kytle v. Peck

1958 OK 206, 330 P.2d 189, 1958 Okla. LEXIS 563
CourtSupreme Court of Oklahoma
DecidedSeptember 23, 1958
DocketNo. 38015
StatusPublished
Cited by1 cases

This text of 1958 OK 206 (Kytle v. Peck) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kytle v. Peck, 1958 OK 206, 330 P.2d 189, 1958 Okla. LEXIS 563 (Okla. 1958).

Opinion

BLACKBIRD, Justice.

This appeal involves an action commenced by the defendants in error, Pruitt and Helen Peck, husband and wife, and Arthur and Imogene Mieling, also husband -and wife, against the plaintiff in error and others, as defendants, to enjoin their alleged violation of certain residential building restrictions in Unit One of the Stephens Addition to the City of Lawton, Oklahoma, by maintaining a real estate business on a lot in said Unit, now owned by one of said defendants, Jack Kytle. The portion of said Addition nearest the properties involved is depicted on the drawing which appears below. Though crude, and not drawn to scale, or completely accurate, it will save many words in describing the geographical factors involved herein.

Carl Stephens platted Unit One during or before January, 1947, and established the Stephens Real Estate Agency in a structure referred to as the “Log Cabin” at the southeast corner of 22nd Street and Atlanta Avenue. In the plat, a certain area was set aside for, and there has been constructed thereon, what is referred to as the Stephens Shopping Center. The businesses in this shopping center are located on that part of Block One of said Addition designated as Lots 29-33, both inclusive, and Lot One of said block, being in the southeast corner of the Unit, or the northwest corner of the intersection of Cache Road, otherwise known as U. S. Plighway No. 62, and 21st Street, otherwise known as “Sheridan Road.” On Lot 28 and the back, or western, end of Lot 2 of said block, a parking area for the shopping center has been provided.

Twenty-first Street, or Sheridan Road, is a thoroughfare, and one of the three access roads to Fort Sill from within the City of Lawton, and is heavily traveled. By a Law-ton ordinance enacted in 1955, the east side of Sheridan Road and Cache Road to Fort Sill was zoned for retail business and light manufacturing. On that side of said road, numerous shops and retail businesses have been established. Some of them must be directly across Sheridan Road from, and face, Unit One, though the record does not furnish sufficient identifying information as to just how many.

In 1948, while Carl Stephens was maintaining his real estate agency in the Log Cabin at 22nd Street and Atlanta Avenue, plaintiff in error’s Southwestern Realty Agency was established in a frame residence situated on Lot 19 of Block 3 of said Unit, on the northwest corner of Sheridan Road and Baltimore Avenue. At some time before commencement of this action, defendants constructed a brick and glass business building front on this house and erected a large flood lighted sign between it and the street, and almost completely covered the grass lawn in front of the structure with gravel to make an automobile driveway and parking space.

The home in which the Pecks reside is just across Baltimore Avenue from the Southwestern Realty establishment, and the Mielings’ home is located on the lot adjoining said realty office site on the west, [191]*191all as indicated on the map below. Also as indicated thereon, the home of a Mr. Rasco, one of the defense witnesses, is north of the Southwestern Realty’s site; but there is an establishment called “Carol’s Kindergarten”, which, the testimony seems to indicate, is between said office and the Rasco property. As further indicated by the map, a lot which adjoins the Mielings’ property on the north, is occupied by the home of a Mr. Barber, who entered the case as an in-tervener, but who will hereinafter be included in our further reference to defendants in error, as plaintiffs. Further reference to plaintiff in error will be by his trial court designation of “defendant.”

The plat restrictions filed in the county clerk’s office by Carl Stephens on January 24, 1947, which plaintiffs sought, by this action, to enforce against defendants, as owners and operators of Southwestern Realty, read in part as follows:

[192]*192“The proprietor declares that the aforesaid lands shown on the plat above referred to is held and shall be conveyed subject to the reservations, restrictions and covenants herein set forth as follows:
“1. All lots in the tract shall be known and described as residential lots except lot 1, 29, 30, 31, 32, 33, Block One, Lots 13 through 19, Block 5, and Lot 22 and 23, Block 6, which are business lots.
“No structure shall be erected, altered, or permitted to remain on any residential building plot other than one detached single-family dwelling, dwelling not to exceed two and one-half stories in height and a private garage for not more than two cars.
“2. No building shall be located nearer to the front lot line or nearer to the side street line than the building set back lines shown on the recorded plat. In any event, no building shall be located on any residential building plot nearer than 25 ft. to the front lot line, nor nearer than 15 ft. to any side street line; except that on all building lots abutting Cache Road.
⅜ ⅝ ⅝
“4. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become any annoyance or nuisance to the neighborhood.”

At the trial, defendants took the alternative position that: (1) The above quoted restriction “1” (which is the only one directly involved in this appeal) is ambiguous, and does not specifically prohibit the operation ■of business establishments on lots such as defendant Kytle’s; and, (2) If said restriction be construed to constitute such a prohibition, it has been disregarded to such an extent that it is of no benefit to residents of Unit No. 1, and now serves no legitimate purpose.

After hearing the evidence, the trial court entered judgment in favor of plaintiffs, granting the injunction against defendants. Thereafter, defendant Kytle perfected the present appeal.

The argument under the first proposition, said defendant urges for reversal, all relates to his contention that the above quoted portion of the restrictions does not restrict the use of his property. He says there is a difference between restrictions against the erection of buildings and those against the use of buildings for business purposes. As examples, he cites the restrictions involved in Crane v. Hathaway, 132 A. 748, 4 N.J.Misc. 293, and Vandershoot v. Kocher, 190 Misc. 1, 72 N.Y.S.2d 121. He further says that the term “residential lots” as used in the subject restrictions only directs how the lots referred to therein shall be “known and described”, and does not purport to relate to or restrict, their use. In attempting to demonstrate what he refers to as the “ambiguous nature” of the restrictions, he points to the use of the word “structure” and the absence of the word “use” from the second paragraph of restriction “1”. He also points to the word “building” in restriction “2" and says it is used “interchangeably” and as applying to structures on “business lots” as well as those on residential lots. He also says that in the prohibition contained in restriction “4” against “noxious or offensive” trades or activities “upon any lot”, there is the “implication that some activity may be carried on other than purely residential or domestic activities.”

Defendant says that in Buck v.

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Bluebook (online)
1958 OK 206, 330 P.2d 189, 1958 Okla. LEXIS 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kytle-v-peck-okla-1958.