McLesky v. Heinlein

200 N.C. 290

• Court: Supreme Court of North Carolina
• Decided: January 27, 1931
• Status: Published

Opinion

BeogdeN, J.

There is no new or novel proposition of law presented by tbe record. Tbe sole question is whether under tbe agreed facts tbe case is controlled by Johnston v. Garrett, 190 N. C., 835, 130 S. E., 835, or Starkey v. Gardner, 194 N. C., 74, 138 S. E., 408. This Court has held “that tbe subdivisions of Myers Park are each a separate, distinct and integral development.” Stephens Co. v. Homes Co., 181 N. C., 335, 108 S. E., 233; Johnston v. Garrett, 190 N. C., 835.

When persons desiring to become home owners purchase property in a subdivision protected by certain desirable restrictive covenants, tbe security of such covenants ought not to be destroyed by slight departures from the original plan, and valid restrictions appearing in all the deeds for lots in such subdivision should not be eliminated and wiped out because of immaterial violations of such restrictions. One of the essential tests prescribed, for determining whether restrictions should be eliminated was thus expressed in Starkey v. Gardner, supra: “However, it is equally true that if the character of the community has been changed by the expansion of a city and the spread of industry or other causes resulting in a substantial subversion or fundamental change in the essential character of the property, then, in such cases, equity will not rigidly enforce the restriction.”

Therefore, the paramount question is whether the facts in the case at bar bring the controversy within the principle applied in the Starkey case. There is no fact tending to show any violation of the restriction within the subdivision itself, except the fact that the owners of seven lots have signed releases in order to permit the owner of lot 13 to erect an art studio, on said lot. The nature of such building does not appear. However, we are of the opinion that the evidence does not show such “substantial subversion or fundamental change in the essential character of the property” as to warrant the removal of the restrictions.

Reversed.