Riverview Property Owners Ass'n v. Hewett

370 S.E.2d 53, 90 N.C. App. 753, 1988 N.C. App. LEXIS 604

• Court: Court of Appeals of North Carolina
• Decided: July 19, 1988
• Docket: 8713DC813
• Status: Published

Opinion

PHILLIPS, Judge.

Plaintiffs made and brought forward eleven assignments of error, not one of which states “the basis upon which error is assigned,” as Rule 10(c) of our appellate rules requires. These are broadside assignments that for the reasons stated in innumerable decisions of our Courts, including Columbus County v. Thompson, 249 N.C. 607, 107 S.E. 2d 302 (1959), and Pamlico Properties IV v. SEG Anstalt Co., 89 N.C. App. 323, 365 S.E. 2d 686 (1988), do not call into question any of the court’s specific findings and conclusions that plaintiffs argue in their brief.

Nevertheless, we have considered plaintiffs’ several arguments and reject them. The following principles of law apply: Restrictive covenants, being in derogation of the unfettered use of land, must be “strictly construed against limitations” on the use of property, Long v. Branham, 271 N.C. 264, 268, 156 S.E. 2d 235, 238-39 (1967); ordinarily the opening or maintenance of a street or a right-of-way “for the better enjoyment of residential property as such does not violate a covenant restricting the property to residential purposes,” Callaham v. Arenson, 239 N.C. 619, 625, 80 S.E. 2d 619, 624 (1954); whether traveling over a lot restricted to residential purposes in getting to adjacent property violates the restriction depends upon the circumstances involved. Franzle v. Waters, 18 N.C. App. 371, 376, 197 S.E. 2d 15, 18 (1973). Under the facts of this case the appellees’ use of Hooker’s Lot 49 to get to Hewett’s place on the river is no violation of the Riverview Subdivision restrictive covenants and the court was not required to permanently enjoin the practice, as the appellants contend. When our Courts have held that using a lot as a right-of-way violated the covenant restricting its use to residential purposes, they did so upon facts quite different from those recorded here. For example, in Long v. Branham, supra and in Franzle v. Waters, supra, the defendants were undertaking to open and maintain a street across their lots to an adjoining subdivision, which would have greatly increased traffic into the development; and in Starmount Company v. Greensboro Memorial Park, Inc., 233 N.C. 613, 65 S.E. 2d 134 (1951), the defendant was undertaking to construct and maintain a road across his lot to a commercially operated cemetery, which would have also increased traffic and attracted many strangers to the subdivision. In this case no street for general use has been constructed or attempted; no commercial activity or traffic by outsiders is involved; the appellee lot owners are merely traveling across the lot to a non-commercial, private, riverside recreational retreat that one of them owns.

Affirmed.

Judges ARNOLD and COZORT concur.