Ortega Company v. Justiss

175 So. 2d 554
CourtDistrict Court of Appeal of Florida
DecidedMay 25, 1965
DocketF-264
StatusPublished
Cited by9 cases

This text of 175 So. 2d 554 (Ortega Company v. Justiss) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortega Company v. Justiss, 175 So. 2d 554 (Fla. Ct. App. 1965).

Opinion

175 So.2d 554 (1965)

ORTEGA COMPANY, a corporation, Appellant,
v.
Robert G. JUSTISS and Elzie H. Justiss, his wife, Appellees.

No. F-264.

District Court of Appeal of Florida. First District.

May 25, 1965.

*555 G.B. Stockton, Jr., of Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, for appellant.

Gregory J. Darby, Jacksonville, for appellees.

RAWLS, Judge.

Appellant-Plaintiff Ortega Company appeals the chancellor's order which denied its prayer for injunctive relief and transferred the cause to the law side of the court.

This controversy arose out of the sale of certain lots by Ortega to the Justisses. On October 30, 1947, Ortega Company, as vendor, entered into a contract with Robert G. Justiss, as purchaser, for the sale of Lots 3, 4, 5, 6, Block 1, and Lots 9, 10 and 11, Block 2, of Ortega's unrecorded plat of Yukon Subdivision located in the County of Duval. This contract contained the following restrictive covenants:

"1. Said lots shall not be owned or occupied by or encumbered to any person other than of the Caucasion race, except that bona fide servants of any race may occupy authorized servants' quarters on said lots.
"2. Said lots shall be used only for residential purposes and not more than one single family residence or one two-family residence and one outbuilding (either a private garage, servants' house or like outbuilding) shall be allowed to occupy any one of said lots at any one time, nor shall any building at any time situate on said land be used for business, amusement, charitable, or manufacturing purposes.
"3. No building or part thereof (except the outbuilding referred to above) shall be erected on any of said lots within twenty-five (25) feet of any street or within seven (7) feet of any adjoining lot.
"4. No outbuilding or part thereof shall be erected or placed on any of said lots within sixty (60) feet of any street or within five (5) feet of any adjoining lot.
"5. No residence shall be erected upon or allowed to occupy any of said lots unless the cost of such residence shall exceed Three Thousand Dollars ($3,000.00).
"6. Prior to the erection of a residence on any of said lots, not more than one garage, other outbuilding or trailer, used or to be used wholly or partly for residential purposes, shall be erected upon or allowed to occupy any of said lots, and said garage, outbuilding or trailer shall not be erected or placed thereon within one hundred (100) feet of any street. After a residence, as herein provided, shall have been erected on any of said lots, no trailer, used wholly or partly for residential purposes, shall be allowed to occupy any part of any of said lots.
"7. Said lots shall not at any time hereafter be used for the manufacture or sale of intoxicating liquors or for any illegal purpose.
"8. No building, fence or wall of any description shall be erected upon or allowed to occupy any of said lots until the plans of such building, fence or wall and its location on said lots shall have been approved in writing by Ortega Company.
"9. Ortega Company hereby reserves for its exclusive use a free and perpetual easement over and under, *556 and right of entering upon and using a strip of land four (4) feet in width at the rear and sides of said land for placing or constructing and maintaining facilities or appliances for power, water, telephone, telegraph, gas, lighting, heating, drainage, sewerage, and all other public utilities. No bamboo shall be planted or construction of any kind, be erected or placed on, over, or under said reserved strip, and deed thereto shall not convey any right, title, or interest in or to any equipment or appliance now or hereafter placed on, over or under said reserved strip.
"10. Ortega Company further reserves for its exclusive use a free and perpetual easement over, under, upon, and across that portion of the above described land upon which are located existing water and sewer lines, for the purpose of maintaining, repairing, and servicing said water and sewer lines, said easement being limited to a strip of land ten (10) feet in width, measured five (5) feet on each side of the center line of such existing water and sewer lines, and deed thereto shall not convey any right, title, or interest in or to any equipment or appliance now or hereafter placed on, over or under said reserved strip.
"11. Covenants one (1) to ten (10), both inclusive, as set forth above, shall remain in force and effect until January 1, 1970, and until said date shall be deemed to be covenants running with the title to said land, but Ortega Company may, from time to time, by sealed instrument, release said premises or any portion thereof from any or all of said restrictions."

A warranty deed to the Justisses conveying the above described lots was executed by Ortega on the 22nd day of January, 1953. It did not include the first restrictive covenant concerning the Caucasion race, and it established a minimum cost of $3,000.00 for the construction of a residence on any one lot; otherwise the same covenants contained in the contract were set out in the deed.

Ortega established its case by placing into evidence the original contract, a copy of the deed, correspondence between the parties, interrogatories and answers thereto, and a copy of the plat of Yukon Park, all of which provided: (1) The covenants set out above, and (2) A violation of same by defendant prior to May 15, 1958, by placing more than one trailer on each of the lots and operating a commercial trailer park on the premises.

The chancellor found inter alia "* * * from 1958 to the date of the institution of this suit on April 18, 1963, the plaintiff wrote several letters to the defendant, first permitting the use of the property for the purpose specified above, but then calling upon the defendants to cease and desist in such activities. The defendants, on the other hand, acknowledged their violations, requested continued forebearance and finally requested cancellation of the restrictions."

Robert Justiss conceded that he had violated the restrictive covenants by operating a commercial trailer park on the lots. He defended upon the grounds of laches, acquiescence, and abandonment of the covenants, all of which he theorized constituted an estoppel against Ortega as to enforcement of the covenants and in addition asked the court to cancel the said covenants. Justiss's defense was based primarily upon his own testimony, the testimony of Admiral Stockton, President of Ortega, called under the adverse witness rule, and a number of photographs. In order to fully evaluate the testimony of the witnesses and understand the "on the ground" application of the *557 covenants involved, an examination of the plat of Yukon Subdivision is of assistance. A sketch based upon plaintiff Ortega's Exhibit 4 is as follows:

The substance of Admiral Stockton's testimony is that: The Yukon plat contains no covenants or restrictions on any of the lots; all of the lots facing Yukon Road and 120th Street were zoned business and all other lots were zoned residence "B";[1]

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Bluebook (online)
175 So. 2d 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortega-company-v-justiss-fladistctapp-1965.