Menstell v. Johnson

266 P. 891, 262 P. 853, 125 Or. 150, 57 A.L.R. 311, 1927 Ore. LEXIS 280

• Court: Oregon Supreme Court
• Decided: December 8, 1927
• Status: Published

Opinions

ROSSMAN, J.

The design of Ladd’s Addition indicates clearly that the dedicator intended it should be a residential area, — in fact, a beautiful subdivision of the City of Portland. In addition to the central park, he provided four others; all five are small, but nevertheless they are so placed and the streets so laid out that the majority of the lots front either on the parks, or have a view of shrubbery in the parks. To this subdivision and to its principal avenue Mr. Ladd gave his name. Having arranged the streets and the parks in a unique and beautiful manner, he put upon each lot a building line and accompanied the filing of the plat with a dedicatory document in which he referred clearly to those blue lines, and stated, “they shall be known and designated as building lines.” While there is no evidence showing when the streets were graded and the pavements laid, we assume we are well justified in presuming that these followed the filing of the plat and the dedicatory instrument. The defendants do not question that the plat was adhered to in all respects when this work was done. Approximately two years after the plat and the dedicatory document were filed in the public offices, Mr. Ladd died. Thereafter some lots were sold by his heirs and each purchaser was presented with an abstract of title containing a copy of the original plat and dedicatory document. Thirty-one lots were disposed of while the title was in the heirs; five of these were conveyed to the Old Ladies’ Home. We are not informed whether or not this was a sale, but the disposition of the other twenty-six lots was by the process of sale. Mr. T. C. Powell, the agent who made these sales, testified as follows:

“The Court: Let me understand you. Did you sell these lots with reference to this recorded plat, the original plat of Ladd’s Addition? A. Yes, sir. We had copies of that plat made, that we used in selling.

“The Court: You sold with reference to them? A. Yes, sir.

“The Court: Aiming to sell with reference to the original plat as recorded? A. Yes, sir.”

We have many times passed upon the legal effect which ensues when one making a sale of a lot displays a plat or map which shows streets or parks. One of the earliest of our cases is Carter v. Portland, 4 Or. 339, in which Mr. Justice McArthur, after an extensive review of the authorities said in behalf of the court:

“We are of the opinion that if one owning land, or having an equitable interest therein, and subsequently acquires the title thereto lays out thereon a town, and makes and exhibits a plan thereof with spare ground marked as streets, alleys, public squares or parks, and sells lots with clear reference to that plan or map, the purchasers of the lots acquire as appurtenant thereto every easement, privilege and advantage which the plan or map represents as part of the town. * * The purchase of lots and improvement of streets, with reference to the Brady map or plat, were acts of acceptance of the streets and other public places, and indeed of the entire plan of the city as displayed upon the map. The fact that the city had not, before the alleged purchase by plaintiffs, used and improved the parcels of land in controversy cannot redound to the advantage of the plaintiffs. It was not necessary that these particular pieces or parcels of land should have been improved or used prior to said alleged purchase in order to entitle the city to hold them. They were shown by the map adopted by Coffin, and by the city, to be public parks, and numerous and valuable private and public improvements were made with reference thereto, and thereby the dedication became irrevocable. As regards the improvement and use of public parks or squares, in like situation, it is sufficient if they are put to the use to which they are dedicated when the public convenience requires. In Rowan’s Eocrs. v. Portland, above cited, a case somewhat analogous to the one under consideration, the Court says that: ‘The dedication having been made and proved by the map, and the sales and conveyance of lots with reference to it, did not require a subsequent user to establish or prove it, and we are not sure that it could have been defeated or lost by non-user even for twenty years, except so far as it was ousted by an adverse use for that period. To say that a dedication to the nse of the future town and of the public, made when the site of the town was in a state of nature, would be lost if not followed by immediate and continued use, or should be limited to the extent to which it was thus used, would deprive the dedication of its intended value and would make it a mockery.’ The local authorities or the corporate guardians are the ones whose duty it is to improve, adorn and embellish the public parks, and where the dedication is irrevocable, as we hold it to have long since become in this case, they are the judges as to the time when the public health and public pleasure demand the use. and enjoyment of the lands dedicated. The original owner, though he has the naked fee, has no right whatever to interfere with the premises except where the use becomes absolutely impossible, or where the corporate authorities seek to put the premises to some other use than that to which they were originally dedicated. * * It was urged by plaintiffs’ counsel that a dedication could not be predicated by the use of the. Brady map by Coffin, for that the same was not of record. It is unnecessary to discuss this proposition at length, for it must be obvious, from the views already expressed, that to support a dedication of streets, alleys, public parks, etc., it is not necessary to show that the map upon which such streets, alleys, public parks, etc., were displayed, was recorded, but simply that it was used and referred to by the proprietor in selling the lots and blocks to which the streets, alleys, public parks, etc., are appurtenant.”

And in Steel v. Portland, 23 Or. 176 (31 Pac. 479), Mr. Justice Bean, speaking for the court, said:

“ * * It has repeatedly been held by this court, and the law is well settled, that where the owner of land lays out and establishes a town and makes and exhibits a map or plan thereof, with lots, blocks, and streets marked thereon, and sells and conveys lots by reference to such plan or map, he thereby dedicates to the public the streets and public places thereon; and if upon such plan lie has designated a space or block as a public park, such space or block is as fully dedicated to public use as are the streets delineated thereon. The sale and conveyance of lots according to such plan or map implies a covenant that the streets and other public places designated shall never be appropriated by the owner to a use inconsistent with that represented by the map upon the faith of which the lots are sold: Carter v. City of Portland, 4 Or. 339; Meier v. Portland Cable Ry. Co., 16 Or. 500 (19 Pac. 610, 1 L. R. A. 856); Hogue v. City of Albina, 20 Or. 182 (25 Pac. 386, 10 L. R. A. 673). There is no difference in the principles applicable to the dedication of public streets and public squares or parks; in each case the dedication is to be considered with reference to the use to which the property may be applied or the purpose for which the dedication is made, and this may be ascertained by the designation which the owner gives to land upon the map or plat, whether he calls it a street, square, or park. It is of no consequence whether the map or plan in this case was properly executed or not if the land in question is sufficiently designated thereon as a public park, as we think it is, for the sale and conveyance by Holladay’s direction of lots and blocks by reference to such plan operated as an irrevocable dedication of the land to the public for use as a park.”

A large number of cases have been before this court in which the same principles of law have been enunciated and applied without deviation; we deem it unnecessary to cite once more these authorities.

But the defendants contend that the acts of Mr. Ladd were not sufficient to create a restrictive covenant; they rely on McCloskey v. Kirk, 243 Pa. 319 (90 Atl. 73), and Zinn v. Sidler, 268 Mo. 680 (187 S. W. 1172, L. R. A. 1917A, 455). In the former of these cases the dedicator drew upon the plat a dotted line, and above it wrote the words, “15 feet building line.” Apparently the instrument of dedication made no reference to the line. The court held this insufficient to create a restrictive covenant; the court evidently felt that this single act upon the part of the dedicator was insufficient to evidence an intent upon his part to create a covenant, and thus it said:

“ * * Unless it affirmatively appeared that the original owners of this land created this building restriction with the effect of a covenant, and that the dotted line was the complete evidence thereof, and that it authorized its incorporation as a covenant in the acknowledgment in the plan, it meant nothing.”

In Zinn v. Sidler the dedicator drew upon the plat a line twenty feet from and parallel to the street line; this he designated with the words “building lines,” no reference to the line appeared anywhere else. The court found that the dedicator may have intended the line to serve no purpose other than as a suggestion to owners of property within the district. In holding it ineffective as a covenant the court said: “So far as our investigation has led us, a mere designated line drawn upon a map or plat of property without more, will not suffice to create a covenant.” Arriving at the contrary conclusion we have Simpson v. Mikkelsen, 196 Ill. 575 (63 N. E. 1036), in which the dedicator set apart a strip two hundred and fifty feet wide through her property and entitled it Humboldt Boulevard; running parallel with this strip she drew upon the plat a dotted line, writing over it, “building line 50 feet North from the boulevard line.” The court held this sufficient to create a restrictive covenant, saying:

“There can be no question, from an examination of the plat, that the purpose of this language and the broken line was to reserve a space 50 feet in width off the front end of the lots abutting upon Humboldt boulevard, upon which no buildings were to be erected. The term ‘building line’ is not of doubtful or obscure meaning, but is a well-understood term when used upon town or city plats. The reservation is an easement for the benefit of the public, and especially all the property abutting upon the street in this subdivision. The space between the building and the street belongs absolutely to the owner of the lot, subject to this easement, and the owners of this and the other lots in the subdivision are guaranteed whatever benefits may result from an unobstructed view across the entire reservation.”

The Massachusetts court in Oliver v. Kolick, 223 Mass. 252 (111 N. E. 879), had before it a situation somewhat similar; its conclusions lend strength to the authority of the Hlinois decision.

When we come to arrive at our conclusion in regard to this situation we find that Section 9849, Or. L., provides that no covenant shall be implied in any conveyance of real property; hence, unless what the dedicator said and did, amounts to a covenant, none can be found. Let us consider his language: certainly he did not intend to incorporate into his dedicatory instrument a mere suggestion to future builders of homes in Ladd’s Subdivision. A better conclusion can be reached as to his meaning when we consider his words in connection with the five small parks. His dedication of the property area composing these parks was expressed in these words: “Upon the express condition that the said tracts shall not be cut, crossed or bisected by any way or right of ways for any street railway * * and in case any such tracts shall at any time in the future be cut, crossed or bisected by any such way or right of way, then in such case the whole of such tract or tracts so cut, crossed or bisected shall revert to the said William S. Ladd, his heirs or assigns * * .” Thus he was using the dedicatory acknowledgment as a repository for a condition subsequent which upon occurrence would defeat the dedication. This, we believe, lends color to. the claim that his words concerning the building lines were words of covenant. But they also show still' further his plan to make Ladd’s Addition into a very desirable place for homes. Having made such abundant provisions for seclusion from street-cars, and' provided attractive surroundings by way of park areas and well arranged streets, we believe that he intended his words in regard to building lines should be understood as words of covenant, and so held.

The next problem is, may these plaintiffs maintain the suit? All of them are home owners in the immediate vicinity of the lot upon which the defendants constructed their building. The homes of several are upon Elliott Avenue, near Hazel Street. Defendants contend that if any easement was created, it was appurtenant and not in gross; they cite Houston v. Zahm, 44 Or. 610 (76 Pac. 641), where Mr. Justice Wolverton, speaking for the court said:

“As a rule of construction in determining whether in a given case an easement is appurtenant or in gross, courts favor the former, and, if the right in controversy is in its nature an appropriate and useful adjunct to the land conveyed, having in view the intention of the grantee as to its use, there being nothing to show that the parties intended it to be a mere personal right, it should be held to be an easement appurtenant, and not in gross, the presumption therefore being in favor of the former where there is a doubt as to the real nature of the grant.”

From our findings as to the facts expressed above, it necessarily follows that we hold the easement was in gross. We have been much impressed with the conclusions announced by Dean Hablan F. Stone, now a Justice of the federal Supreme Court, as expressed in 19 Columbia Law Review, 177:

“In this country a number of courts have reached the conclusion that, in the case of a building plan where a covenantor has subdivided the plot held by him subject to the restrictions, the sub-grantees may enforce the covenant against each other respectively although there is no express renewal of the covenant in the deed. This somewhat startling result really rests on the true interpretation of the covenant when it is the basis of the building plan. If the real meaning of such a covenant is that the restriction is intended to be imposed on every part of the land embraced in the plan for the benefit of every other part of the land in whosoever hands it may come, the original grantor who has offered the land subject to the plan may on principles already considered be deemed impliedly to have reserved the covenant for the benefit of all those who may thereafter acquire an interest in any part of the land embraced in the plan. He would then become trustee of the covenant for all subsequent purchasers and each purchaser as he acquired an interest in any part of the restricted property would become entitled to the benefit of the covenant as cestui que trust. In Schrieber v. Creed [10 Sim. 33, 40], Shadwell, V. C., suggested that the plaintiff in order to enforce restrictions must be either an assignee or a cestui que trust.

“This view has received the support of judicial opinion in some other cases. As a matter of procedure, the original covenantee need not be joined as a party in a suit brought by one grantee against another, but in other respects the notion that the original covenantee under a building plan is a trustee of the restrictive covenant for all subsequent grantees including the grantee of a subdivision of a single plot, conforms to recognized legal doctrine and effectuates the intention of the parties.”

Our practice is in harmony with this rule.

We believe that the plaintiffs are therefore in a position to maintain this suit.

It is argued that after the death of Mr. Ladd the heirs, the corporation, or both, modified the plan concerning the use of the property in such a way as to abandon the blue lines and substitute a new plan whereby building restrictions having a duration for only ten years and requiring a certain set-back from the property line were substituted for the old plan. This could not be done without the consent or acquiescence of the owners of the lots previously sold. Upon this subject the defendants have the burden of proof. The testimony of Mr. T. C. Powell previously quoted, shows that as long as the title remained in the heirs the plan inaugurated by W. S. Ladd was adhered to. When the corporation was formed and deeds were executed by it containing the building restrictions no new plat was filed in lieu of the old one containing the blue lines; the instrument of dedication was not modified and the abstracts of title continued to contain copies of the original plat. No official of the company testified that the company intended to eliminate the blue line; no one who had purchased any of the original thirty-one lots was shown to" have acquiesced in an elimination of the blue lines. One of the officials of the company testified that as 1917 approached he began to wonder what would be the effect of the blue lines. There is, of course, evidence which is not in harmony with the blue, lines, as for instance the clause containing the building restrictions expired at the end of ten years and the deeds of conveyance were a general warranty, but we do not believe that this evidence overcomes the force of that in favor of the blue lines.

We do not believe that the plaintiffs failed to act promptly; far from acquiescing in the defendants’ acts they protested not only early, but made it quite clear before the defendants commenced construction that the plaintiffs were opposed to any building which could violate the established building line.

Having arrived at the foregoing conclusion, it is apparent that the plaintiffs are entitled to relief. We are aware of the fact that when the defendants are compelled to move their building within the blue lines they will sustain a considerable loss. But one who enters a residential district which the owners have embellished and made attractive through the expenditure of money and labor and puts his building within a few feet of the sidewalk line of one of the main thoroughfares, knowing as he must, and as he was positively told that his building in that place was unwelcome, should not be heard to complain of the expense of righting his wrong. The builders in this case found a beautiful subdivision of homes, wide park areas, and a cluster of five parks; by despoiling it through a violation of its established building lines they saw a profit. Had all others built within three feet of the sidewalk line these builders would not have entered, it would have been unattractive to them. It was only by taking to themselves a license possessed by no one else and displaying an utter disregard of the rights of all others that they expected to make a profit. But the rights of these others rest upon a covenant which the defendants cannot violate with impunity. The plaintiffs may have a decree requiring the defendant Evans to remove his building so that it shall not be nearer than twenty feet to Elliott Avenue, and not nearer than fifteen feet to Hazel Street; the removal to be completed within four months from the entry of the mandate. Plaintiffs may have their costs here and below. Decree reversed.

Reversed. Costs Taxed. Rehearing Denied.

Rand, C. J., and Coshow and McBride, JJ., concur.