McMurtry v. Phillips Investment Co.

45 S.W. 96, 103 Ky. 308, 1898 Ky. LEXIS 70

• Court: Court of Appeals of Kentucky
• Decided: March 12, 1898
• Status: Published

Opinion

JUDGE HAZELRIGG

delivered the opinion of the court.

This action was brought to restrain the erection of what is known in the record as an apartment house on St. James’ Court in the city of Louisville. The language of the restricting clause in the conveyance controlling the matter is as follows:

'Tt is a condition of this deed that the property herein conveyed shall be used for residence purposes only, and that, in erecting a residence therein it shall be built of brick or stone and shall cost not less than seven thousand dollars and that in erecting said residence the front wall thereof shall be not less than thirty-ñve feet back from the sidewalk line of St. James’ Court.”

It is also averred that there was a symmetrical plan for improving this Court with single and segregated private residences which would be disturbed, in fact destroyed by the erection of the house complained of and notice of which plan was given the public by advertisements, posters and hand bills descriptive of the character of the buildings that were to be erected in the Court.

The proof shows that the building complained of is to cost some forty thousand dollars, is to be of brick and stone and its front wall is to be set back the required distance.

The controversy is whether this house is to be used for residence purposes only within the meaning of the deed.

The explanation of its character and in answer to the claim that there was to be in it a public or semi-public restaurant the originator of the scheme to erect this house, testifies that “there is to be no restaurant of a public nature; there is to be everything in this house to make housekeeping comfortable. Eyery apartment in the house is to have a parlor and dining room and one or more bed rooms and a kitchen. Every apartment is to have more than one bed room; there is only one four room fiat. Provision is made in the house for hot and cold water and all other conveniences. The basement, in which is to be a large dining room, to be used by the occupants of the house if desired, also contains three sets of laundry tubs, that each apartment may have one or more days to use in laundering their linen, or to be used in any way they choose as a laundry is used in a private residence. A part of the basement is to be used for storing the trunks of the parties who may choose to put their trunks out of' their apartments. There is to be nothing about it of a cheap or nasty kind. There is but one house in St. James Court constructed of as fine material and that is the Conrad residence.”

It is shown, indeed admitted, that these different apartments or flats are places for persons to reside in, but it is contended that the language of the restriction conveys the idea of a single residence for a single family or at any rate excludes the idea of a number of residences under the same roof or in the same house.

We think, however, that to give the language used, this meaning, would be to extend its scope beyond the expressed intention of the parties. The purposes for which the house is to be erected on the Court were to be used were “residence purposes only.” And as the house in controversy is to be constructed for such purpose only and is not to be used for any other purpose, we do not think its construction is at all prohibited by this restriction clause.

If the intention had been to permit the erection of only segregated private residences, the instrument would, doubtless have so provided. In Hutchison v. Ullrich, 145 111. 336, the purchaser covenanted to erect “a single dwelb ing costing not less than seventy-five thousand dollars” and further “that only a single dwelling is to be constructed or placed upon each fifty foot lot.” It was held that the intention was to require the property to be used for residence purposes and under the restrictive clauses named in the deed, stores, livery stables, warehouses, etc., could not be erected, but that flats or apartment houses could be erected.

In Gillis v. Bailey, 21 N. H. 156, the language was sufficiently explicit to prohibit the erection of flats or apartment houses. The language was, “in order that the buildings erected thereon may not be crowded together, but may each be surrounded by a space of open ground, and for this purpose, it has been agreed that only one single dwelling house with a shed, barn or other buildings requisite for the use of same, shall be erected, etc.”

We do not think the language we have here to deal with “for residence purposes only” is as restrictive as that in either of the cases cited. The proof as to the general plan of improving this Court as shown by the advertisements of its original promotors, is indefinite, and knowledge of them was not brought home to the appellee.

Wp think the chancellor properly refused the relief asked and his judgment is affirmed.