R & R REALTY CO. v. Weinstein

422 P.2d 148, 4 Ariz. App. 517

• Court: Court of Appeals of Arizona
• Decided: December 29, 1966
• Docket: 2 CA-CIV 63
• Status: Published

Opinions

KRUCKER, Chief Judge.

Appellant, plaintiff below, commenced action to quiet title to certain real property denominated Block S, Williams Addition, an exclusive subdivision located in the city of Tucson. Appellees, defendants below, are owners of “blocks” in this subdivision and trustees operating water and park facilities in trust for the use and benefit of the property owners in the subdivision. In its complaint appellant alleges that it is the sole owner of Block 5, Williams Addition, that there does not now exist and never did exist any restrictions, conditions or covenants which in any way restrict, control or govern the use or enjoyment of the property, that none of the appellees has any reversionary rights or any right, title or interest of any kind in or to the property and that, therefore, the appellant is not in any way -restricted in the use and enjoyment of its .property. Cross motions for summary judgment were filed and the trial court granted summary judgment in favor of the appellees and against the appellant. The appellant has appealed from this judgment.

The facts are undisputed and since resolution of this appeal requires close scrutiny of all the facts and surrounding circumstances, they will be fully presented.

On July 13, 1927, Timothy S. Williams and Alice W. Williams, husband and wife, were the owners of a quarter section of land lying east of Tucson and on this date filed and recorded a subdivision plat, titling the same “Williams Addition”.¹ The plat divided the land into 25 lots, designated as “Blocks”, ranging in size from two and one-half acres to eight acres. Block 5, the subject matter of this action, fronts on Broadway Avenue and consisted of 3.16 acres before certain portions thereof were taken for the widening of Broadway Avenue. The subdivision plat made no reference to any restrictions or covenants and no declaration of covenants, restrictions and/or conditions governing the use of the blocks located in Williams Addition was ever filed by Mr. and Mrs. Williams.

Approximately two years later, on April 19, 1929, Mr. and Mrs. Williams conveyed the first block of Williams Addition to H. Clark Souers and Dorothy F. Souers, together with a }4tth interest in the water system and park located in the subdivision. The deed also provided that at such time as the owners of the majority of the blocks in Williams Addition shall request, each block owner would transfer his jéáth interest in the water system to a trustee to operate in trust for the use and benefit of all property owners. In addition, the deed provided that beginning September 1, 1930, the “owners of the blocks in the Addition aforesaid shall take over the care of said park and roadways and trees in and upon the curbs or streets in said Addition and each block in said addition shall be liable for one-twenty-fourth (%i) of the cost of caring for said park and trees and the irrigation of the same”. Several other provisions were included in this deed as well as thirteen numbered paragraphs containing certain covenants, restrictions and conditions. Specific provisions of this deed will be more closely examined later in this opinion.

After execution and delivery of the Souers’ deed, Timothy S. Williams died without having made any further conveyance of property in Williams Addition. His estate was probated and distributed to his widow, Alice W. Williams, who thereafter conveyed Blocks 7, 23, 8, 12 and 20, including an undivided l&tth interest in the water system and park as above noted, on various dates between April 23 and November 14, 1936. Each of these deeds contained substantially the same language as the Souers’ deed including the thirteen numbered paragraphs containing the restrictions, covenants and conditions. The only exception is that the time limit within which the owners of a majority of the blocks in the subdivision could demand a conveyance of the well equipment and water system to a trustee, as contained in the Souers’ deed, was omitted in subsequent deeds.

Thereafter, on November 24, 1936, Mrs. Williams died and one of the distributees of her estate filed a partition action seeking a sale of Williams Addition, except those blocks already sold, and distribution of the proceeds among the various heirs. On April 10, 1939, a judgment was entered finding that a fair partition could not be effected without depreciating the value of the property, that a sale would be more beneficial to the interested parties and a commissioner was appointed to conduct the sale. The judgment made no mention of any restrictions or covenants as contained in the prior deeds.

On June 5, 1939, a modified and amended judgment was entered providing substantially the same as the prior judgment. The court ordered the property, including Block 5, sold in one parcel and that the deed should contain certain provisions and restrictions. On July 24, 1939, there was executed and recorded a Commissioner’s Deed to the property, which recited:

“Subject, also, to all the restrictions, covenants and agreements, conditions and easements contained in the deeds heretofore given by Timothy S. Williams and Alice W. Williams, his wife, or by Alice W. Williams, as distributee under the decree of distribution of the estate of Timothy S. Williams, deceased, to purchasers of certain portions of said Williams Addition, which deeds are now of record in the office of the County Recorder of Pima County, Arizona, and are hereby referred to for a statement of such restrictions, covenants, agreements, conditions and easements, so far as the said restrictions, covenants, agreements, conditions and easements still remain in full force and effect.”

On December 11, 1945, an instrument signed by owners of all of the blocks of Williams Addition, except Blocks 7 and 13 (the park), denominated Appointment of Trustee and Acceptance Thereof, was filed and recorded. A trust deed was also filed conveying the water system to R. C. Stockfleth in trust for the use and benefit of the block owners in the subdivision. The agreement also provided for annual meetings and that a majority of block owners could appoint a new trustee and limit powers of the trustee.

On August 6, 1949, another trust deed was filed and recorded stating that the streets in Williams Addition had been abandoned by action of the Board of Supervisors of Pima County and that by virtue thereof, the various block owners owned the streets. The trust deed conveyed the streets to R. C. Stockfleth in trust for the use and benefit of all property owners in the subdivision for the purpose of maintaining proper means of ingress and egress to and from their respective properties.

On May 13, 1959, there was filed and recorded a Certificate of Change of Trustees executed by Richard B. Ensign as Chairman, and Wade T. Childress as Secretary of the Williams Addition Block Owners Association, naming Childress, Ensign and Mrs. H. Nuzum as the newly elected trustees.

Thereafter, on December 20, 1960, a deed was executed conveying to appellant Block 5 of Williams Addition, except a certain right of way described therein. The deed contained the following language:

“SUBJECT TO:

* ^ * H? * *

“Rights and interest of all other owners of Blocks in Williams Addition in and to Block 13 as a park, and in that portion of Block 25, set aside and reserved for a well site and pumping plant.

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“Restrictions, conditions and covenants, including a reversionary clause, contained in instrument recorded July 16, 1936, . . .; and by instrument of record in Book 92 of Miscellaneous Records, page 321, in Book 222 of Deeds, page 257, and by instrument recorded May 26, 1944, in Book 267 of Deeds, page 309, in Book 289 of Deeds, page 530, and recorded March 9, 1946, in Book 296 of Deeds, page 239, and recorded May 18, 1956, in Docket 987, page 138.”

On the basis of the foregoing facts, the trial court granted appellees summary judgment and found that the 1929 deed to the Souers created reciprocal rights and duties which pertained to the entire subdivision and that each grantee has a definite interest in the other lots in Williams Addition having rights one against the other in enforcing the restrictions. The question in this appeal is whether the restrictions imposed in the 1929 deed, and subsequent deeds by Mrs. Williams, were intended to create mutually enforceable restrictions among the various grantees or whether they were personal covenants between Mr. and Mrs. Williams and their respective purchasers.

There has been considerable writing on this subject and “courts are continuously being called upon to determine the problems arising from the imposition of restrictive covenants.” Palermo v. Allen, 91 Ariz. 57, 63, 369 P.2d 906, 911 (1962). The reason is clear as noted in the Restatement, Property, Scope Note § 522 (1944), page 3162:

“The subject of promises respecting the use of land derives its chief significance for the law of property from the fact that the benefit of such a promise may be realized by others than the original promisee and the burden may come to rest upon others than the original promisor.”

Our Supreme Court has noted that some assistance may be gained in arriving at a proper solution of cases involving restrictive covenants by recognizing that such covenants may be divided into three classes. In O’Malley v. Central Methodist Church, 67 Ariz. 245, 250-251, 194 P.2d 444, 448 (1948), the Arizona Supreme Court quoted from Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687, 689, 37 L.R.A.,N.S., 1, 127 Am.St.Rep. 925, as follows:

“‘ * * * For the particular purposes of this case such covenants may be broadly divided into three classes. In the first class may be placed those which are entered into with the design to carry out a general scheme for the improvement or development of real .property. This class embraces all the various plans, generally denominated in the English cases as 'building schemes,’ under which an owner of a large plot or tract of land divides it into building lots, to be sold to different purchasers for separate occupancy, by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises. In such cases the covenant is enforceable by any grantee as against any other, upon the theory that there is a mutuality of covenant and consideration, which binds each and gives to each the appropriate remedy. Such covenants are entered into by the grantees for their mutual protection and benefit, and the consideration therefor lies in the fact that the diminution in the value of the lot burdened with restrictions is partly or wholly offset by ' the enhancement in its value due to similar restrictions upon all the other lots in the same tract. (Citing cases.) The second class embraces those cases in which the grantor exacts a covenant from his grantee, presumptively or actually, for the benefit and protection. of contiguous or neighboring lands which the former retains. In such cases the grantees, * * * cannot enforce the covenant as against each other, although the grantor or his assigns of the property benefited may enforce it against' either or all of the grantees of the 'property burdened with the covenant. (Citing cases.) Then there is a third class, where there are mutual covenants 'between the owners of adjoining lands, in which the restrictions placed upon each produce a corresponding benefit to the other, and in such a case of course, either party or his assigns may invoke equitable aid to restrain a violation of the covenant. (Citing case.)’ (Emphasis supplied.)”

The issue in this case is whether the restrictive covenants contained in the 1929 Souers’ deed, and deeds conveyed subsequent thereto, fall within the first or second class noted above. The trial court concluded that the facts of this case bring it within the first category, i.e., covenants designed-for the purpose of carrying out a general plan or scheme for the improvement and development of Williams Addition.

The rules of law regarding construction of restrictive covenants appear reasonably clear although their application to diverse factual situations has proven problematic.² The Arizona Supreme Court lias noted certain rules regarding the law in this area in Palermo v. Allen, supra, at 91 Ariz. 64-65, 369 P.2d 911-912:

“Restrictive covenants which equity enforces between purchasers inter sese are those that have been imposed by a common vendor or the original owner of a tract of land in pursuance of a general plan for the development and improvement of the property. [Citing cases.] An action is not maintainable between purchasers not parties to the original covenant where it does not appear that the covenant was entered into to carry out some general scheme or plan for the improvement or development of the property, or it does not appear that the covenant was entered into for the benefit of the land, or it appears that the covenant was not entered into for the benefit of subsequent purchasers, but only for the benefit of the original covenantee. (Citations.)

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“ ‘It takes two to make a contract. There must be a meeting of the minds of both parties thereto. The mere fact that the vendor in the exaction of uniform building restrictions had in his own mind a general plan or scheme of improvement falls short of establishing even his own intention that such restrictions shall be for the benefit of any one other than himself, and much less does it establish such a meeting of minds between him and his grantee as is necessary to create a contract. Given such intention in the mind of the grantor, there must have co-existed a like intention in the mind of his grantee * * ”

The facts previously noted reveal that Mr. and Mrs. Williams jointly executed a deed to Block 21 of Williams Addition in 1929. The deed referred to the filed and recorded map and plat of the subdivision and contained thirteen covenants, conditions, restrictions and reservations. No uniform plan of restrictions was filed with the original plat and plan of Williams Addition nor was there a provision in this first deed that similar covenants, conditions, restrictions and reservations would be included in all deeds subsequently issued to purchasers of property in Williams Addition. Thus, we are required to examine the language of the 1929 deed, to determine whether both parties thereto mutually intended to create binding restrictions on all property with mutually enforceable rights as among the various grantees because of a general plan or scheme for the improvement and development of the subdivision. If mutually enforceable covenants were created in this case, they must have been created in the first conveyance by deed in 1929.

“It is undoubted that, when the owner of a subdivided tract conveys the various parcels in the tract by deeds containing appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others. The agreement between the grantor and each grantee in such a case as expressed in the instruments between them is both that the parcel conveyed shall be subject to restrictions in accordance with the plan for the benefit of all the other parcels, and also that all other parcels shall be subject to such restrictions for its benefit. In such a case the mutual servitudes spring into existence as between the first parcel conveyed and the balance of the parcels at the time of the first conveyance.” Werner v. Graham, 181 Cal. 174, 183 P. 945, at 949 (1919).

In Werner v. Graham, supra, the California Court held that since the deeds did not recite that the restrictions were intended to inure to the benefit of all other lot owners, each lot owner was not entitled to enforce the covenants against other lot owners under a theory of a general plan for the development and improvement of the property. The court stated that the written instruments “constitute the final expression of their understanding” and although the grantor undoubtedly had in mind a general scheme for the development of the property, such fact is irrelevant unless the intent was mutual and so expressed in the written instruments.

In the case before us, the trial court found that “Read as a whole the original deed indicates clearly that there is a very comprehensive and interrelated plan for the development of the Williams Addition,” and that “all of the lots in the Williams Addition have rights one against the other in enforcing these restrictions and that this intent has been expressed by ‘plain and unmistakeable implication’.” We believe that the map and plat of the subdivision filed by the Williams,” as well as the original deed executed to the Souers, clearly indicate that Mr. and Mrs. Williams intended the creation of an exclusive residential subdivision; we must determine whether the original grantees had a similar intent.

Examining the 1929 deed from Timothy and Alice Williams to the Souers, it is to be noted that the property description refers to the map and plat of Williams Addition “on file and of record in the office of said County Recorder of Pima County, Arizona, * * *By virtue of this deed, title to a 14tth interest in the water system passed to the Souers on condition that when the owners of a majority of the blocks so requested, each owner would convey his interest therein to a trustee who would operate the system for the use and benefit of all owners of blocks in the subdivision. The deed also conveyed a l&tth interest in the park located in the center of the subdivision “in trust, however, solely to be used as such park during the period and term of the conditions and restrictions hereinafter set forth, to-wit: until January 1st, 1978.”

These provisions can only have significance if it was contemplated by both parties that the recorded plat and conveyance of a fractional interest in the water system and park area were part of a general plan for the development of the subdivision and that each owner of the 24 blocks in Williams Addition would receive similar interests and be bound by similar burdens so that the plan could be carried out. The deed contains both benefits and burdens by such provisions and they would be meaningless unless it was understood and intended that all subsequent deeds would contain similar benefits and burdens.

Thereafter follow the thirteen numbered paragraphs containing the “conditions, restrictions, covenants, and reservations,” in which the term “said property” is ap-' parently used interchangeably to mean both the particular block (Block 21) to which title passed by this deed, as well as the entire Williams Addition. Paragraph 7 provides:

“7. No part of said property shall be sold, conveyed or leased in whole or in part, to any person of African or Asiatic descent, or to any person not of the White or Caucasian race. No part of said property shall be used, or occupied, or permitted to be used or occupied, in whole or in part, by any person of African or Asiatic descent, or by any person not of the White or Caucasian race, except such person as may be employed thereon as domestic servants by the owners or tenants of any blocks in said property!’ (Emphasis supplied.)

Since the property conveyed could not be subdivided further, the last sentence of Paragraph 7 could have no meaning unless it referred, by the term “said property,” to the entire Williams Addition. It would be difficult to derive any other intent from the use of such language.

Paragraph 8 provides:

“8. No structure whatever other than one first class private, one-family residence with the customary out-buildings, shall be erected, placed, or maintained on any block in said property(Emphasis supplied.)

The obvious meaning of the term “said property” in this paragraph is reference to the entire Williams Addition and not merely to the estate passed by virtue of this deed. Paragraphs 11, 12 and 13 provide: . ...

“11. Any building erected or placed upon any part of said property and every part thereof, except the front steps and roof projection at the eaves thereof, shall be located not closer, than fifty (50) feet to the front property line of the blocks upon which the same is placed or constructed. In other words, all buildings upon any part of said property shall be set back at least fifty (50) feet from the street (meaning thereby, any street, including side streets as well as streets upon which the respective blocks front).

“12. In connection with any residence construction and the use thereof as hereinbefore in this deed recited, there shall be constructed in each block by the owner thereof at the time of construction of any residence building and placed in operation at the time of the completion of any such residence building, a septic tank of proper design and capacity fully to care for the needs of said residence.

“13. The real estate hereinbefore described shall not be subdivided into lots or parcels, nor shall any conveyance or transfer of less than the whole block be made to any person. This restriction shall not apply to block twenty-four (24) upon which the well and pumping apparatus are located and as to this block the site of said well and pumping apparatus with a sufficient area of ground about them may be set off from said ' block and as a parcel of the same, from which is also set off and retained by grantors the following real estate, to-wit: (description follows).” (Emphasis supplied.)

We agree with the trial court that “in paragraphs numbered 7, 8, 11, 12 and 13 there are various words in each of said paragraphs which cannot be given any proper meaning unless the words ‘said property’ be construed to refer to the Williams Addition.” We conclude that by the inclusion of these paragraphs it is obvious that the grantor had in mind a comprehensive plan for the development of the subdivision and intended to create mutually enforceable covenants between the various grantees and not personal covenants binding only these particular grantees.³ Admittedly the grantor’s intent alone is not sufficient since it is the mutual intent of both grantor and grantee that is important. We are of the opinion, however, that the language clearly implies that the land was being conveyed under a general plan of improvement, that the land was subject to the benefits and burdens resulting therefrom, and that both grantors and grantees understood and intended that mutually enforceable equitable servitudes were created by the deed so as to render the restrictions effective in carrying out the general plan. As noted by our Supreme Court in O’Malley v. Central Methodist Church, supra, at 67 Ariz. 257, 194 P.2d 452, quoting from Scull v. Eilenberg, 94 N.J.Eq. 759, 121 A. 788 (1923):

“ ‘The burden follows the benefit’ * *. When there is no benefit there should be no burden. If the benefit be destroyed the burden should end.”

The covenants would be of no value to these grantees if it was not understood and intended that the numbered restrictions were applicable to Williams Addition as a general plan for the improvement and development of the subdivision whereby each block owner would have the power to enforce the restrictions. Any other conclusion would render these covenants largely meaningless and result in subjecting the property obtained by the Souers to the burdens of the restrictions without the corresponding benefits.

Thereafter, the deed contains the following paragraph which is of particular significance:

“The aforesaid conditions and restrictions and each and all thereof shall continue and remain in full force and effect at all times as against ANY OWNER OF ANY OF THE SAID PROPERTY, * * (Emphasis supplied.)

The plain import of this language cannot be disputed; its obvious meaning was to create a power in any block owner to enforce the restrictions and covenants against “any owner of any of the said property” and not merely to create such power in the grantors. The term “said property” can have no other meaning than Williams Addition as a whole.

Another paragraph in the deed provides for forfeiture in favor of the grantors, their heirs, executors, administrators and assigns, in the event any of the conditions, restrictions and covenants are breached. The appellant urges that this forfeiture provision indicates the intent of the Williams to create personal rights enforceable only by them. However, our Supreme Court stated in O’Malley v. Central Methodist Church, supra, at 67 Ariz. 254, 194 P.2d 450:

“that restrictions providing for forfeiture only were enforceable as neighborhood restrictions on the ground that the evidence established beyond doubt a plan or scheme of improvement for the benefit of each lot owner.”

We believe the facts of this case and the language of the Souers’ deed show such a plan or scheme of improvement for the benefit of each lot owner.

'Two additional' provisions indicate a ■mutual intent to cause the restrictions and covenants to run with the land since it is stated:

“* * * but said provisions, conditions, restrictions, and covenants shall be binding upon and effective against any such mortgagee or trustee or owner, thereof whose title thereto or whose grantor’s title is, or was, acquired by foreclosure, trustee’s sale, or otherwise.

“The.terms, conditions, restrictions, covenants and agreements -herein contained shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto.” (Emphasis supplied.)

■These provisions indicate the intent to create covenants running with the land which are mutually beneficial, mutually prohibitive and mutually enforceable by the various grantees. ,

Summarizing what we believe to be the law applicable to the case before us, we quote from our Supreme Court in O’Malley v. Central Methodist Church, supra, at 67 Ariz. 257, 194 P.2d 452, citing the language of DeGray v. Monmouth Beach Club House Co., 50 N.J.Eq. 329, 24 A. 388 (1892) : .

“ ‘ “The law, deductible from these principles and the authorities, applicable to this case, is. that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to, have the benefit thereof, and the covenants- are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and, his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme and -.the covenant has been part of the subject-matter of his purchase. The right of action from this would seem to be dependent as much on the fact of the general scheme as on the covenant—* * * ” ’ ”

■ We believe the Souers’ deed and the facts surrounding that conveyance evidence •a scheme for the development of an exclu- ■ sive residential subdivision, and that the covenants, conditions and restrictions were mutually intended to effectuate this scheme by creating mutually enforceable rights as among the various grantees. Identical provisions were included in subsequent deeds executed by the Williams and were also included by reference in all deeds executed thereafter, including the appellant’s deed. Thus, this is not a case where the owners of a subdivided tract of land convey lots from timé to time and include in the various deeds, restrictive covenants ■ almost identical in form from which, in some cases at least, it has been held that, taken all together, such facts establish mutually enforceable equitable servitudes although nothing exists in any single deed to indicate an intent to create such reciprocal rights. See Werner v. Graham, supra, and cases cited therein. This is a case, however, in which both grantor and grantee mutually intended the creatiqn of reciprocal rights and burdens by virtue of the first conveyance of property in Williams Addition thereby creating in the Souers the power to compel the inclusion of similar provisions in all subsequent deeds. As concluded by the trial court, and with which we agree, “no equity court would have permitted the Williams” to sell “other lots in the subject subdivision without the same being encumbered and/or restricted by the covenants and provisions contained in said deed.”

We realize that restrictive covenants are- to be strictly construed and that “[i]n determining whether land is included in a building scheme doubts are to be resolved in. favor of the free use and enjoyment of the property and against restrictions”. Palermo v. Allen, supra, at 91 Ariz. 68, 369 P.2d 914.⁴ We do not believe that “doubts” exist in this case, since, as noted, the original deed contains sufficient language to indicate9 that the contract contemplated the creation of mutually enforceable rights and burdens. We have also noted that a building scheme' or plan for the development of a subdivision exists by virtue of express contracts between the subdivider and his grantees and where the contracts do not include reference to a set of recorded covenants, conditions? and, restrictions made applicable to the entire subdivision, they are mutually enforceable only if such intent on the part of both grantor and grantee is found by clear language in the deeds.

We believe that there was sufficient evidence to support the trial court’s judgment that the 1929 deed satisfied these requirements and see no basis for reversing that judgment. The plain and unmistakable implication from the language of the 1929 deed and subsequent deeds, and the map and plat of Williams Addition filed in 1927, is that a highly exclusive residential subdivision was intended and that to insure such, the benefits and burdens of the covenants were mutually intended between grantors and grantees to create mutually enforceable rights among the various grantees.

Having so concluded, we find nothing in the facts and circumstances since the time of the original deed.to the Souers in 1929 to alter the effect as to the benefits and burdens of the covenants contained therein. Furthermore, the intent to create an exclusive residential subdivision has materialized and the conduct of property owners in that subdivision in executing trust deeds of their respective interests in the park, .water system and roadways ..for-the-benefit of the,subdivision as a whole, and the manner in which they have occupied and used their properties is totally consistent with the conclusions herein reached. The appellant took title to its property with notice of the restrictions, covenants and conditions and is bound thereby.

The judgment of the trial court is accordingly affirmed.

HATHAWAY, J., concurs.

NOTE: Judge JOHN F. MOLLOY having requested that he be relieved from consideration of this matter, Judge ANTHONY T. DEDDENS was called to sit in his stead and participate in the determination of this decision.

FOOTNOTE I'-'APPENDIX

'Map and Plat of Williams-Addition

1 . The map and plat of Williams Addition has been reproduced as an Appendix to this opinion.

2 . As noted in 26 C.J.S. Deeds § 163, pages 1095-1098 (1956):

“In construing covenants or restrictions as to the use of property, each case must stand by itself, since the facts differ so widely in each one, and each must be decided on the merits, in view of its facts. The circumstances and conditions surrounding the parties and property must be considered, as well as the manifest objects or purposes of the grant or restriction. So, the intent of the parties and the object of the deed or restriction should govern, giving the instrument a just and fair interpretation. In other words, effect is to be given to the intention of the parties,' as shown by the language of the instrument, considered in connection with the circumstances surrounding the. transaetion, and the object had in view by the parties, since the primary object in construing restrictive covenants should be to effectuate the legitimate desires of the contracting parties. The grantor’s intention may be ascertained from the restricting words themselves or from those words taken in connection with other words in the deed, and the intention of the parties must be gathered from the entire context, rather than from isolated words. In interpreting a restriction, it has been held that the same logical processes would be applied as in interpreting statutes. Ambiguous restrictions may be interpreted in the light of a general plan, and should be so construed as tó assure a reasonable use of the property for legitimate purposes.”

3 . See 26 C.J.S. Deeds § 167(3), page 1156 (1956), wherein it is stated:

“An agreement that restrictions shall be for the benefit of the owners of other property in the tract or subdivision may be inferred from the circumstances and terms of the instrument and need not be expressed either verbally or in writing, and a strong circumstance in-cheating that the restriction is not for the mere personal benefit of the grantor may be found in the fact that it operates to enhance the value of his adjacent premises, whether retained by him or conveyed to others and to serve as an inducement to purchasers.”

See also, Virgin v. Garrett, 233 Ala. 34, 169 So. 711 (1936).

4 . 26 C.J.S. Deeds § 163, pages 1098-1102, (1956), states:

“Restrictive covenants have been required to be strictly or narrowly construed, or enforced within close confines. More precisely, they are to be construed most strongly or most strictly against the grantor and persons seeking to enforce them, and liberally in favor of the grantee, or in favor of freedom, or free use, of the land, all doubts or ambiguities being resolved in favor of a free use of property and against restrictions. One seeking to enforce a restriction has the burden of demonstrating that his version of it should be sustained, or is sustained by the plain and natural interpretation of its language, or that the activity objected to is within the terms of the restriction.

“This rule of strict construction, however, obtains only where the parties have failed to express their meaning with sufficient clarity to enable the court to say that the construction of the deed is plain and admits of no doubt; the rule will not be applied to defeat the obvious purpose of the restriction, or the obvious intention of the parties, even though not precisely expressed, nor does it require an unnatural and strained construction of the words used; and before giving effect to the rule the court will have recourse to every aid, rule, or canon of construction to ascertain the intention of the parties, since it is the duty of courts to enforce, not to make, contracts.”