Opinion by
Mr. Chief Justice McBride.
1. The clause in the various deeds limiting the buildings to be erected on lots in Laurelhurst to those designed for residential purposes is a restrictive covenant and is valid even where the building which it is proposed to erect is intended for school purposes: Doe v. Keeling, 1 Maule & S. 95; Wickenden v. Webster, 6 El. & Bl. 387. Such a restriction will also be held valid as against the erection of a church within the restricted area: St. Andrew’s Church’s Appeal, 67 Pa. St. 512. It may be taken as settled law that such covenant is valid, and that the buildings which defendant proposes to erect are within the restrictive clause above recited, unless they have been taken out of it by the consent given to the defendant by the Laurelhurst Company.
2. There can be no question but that the Laurelhurst Company having by its conveyances reserved the right to dispense with the restrictive clauses so far as they refer to buildings erected for school or church purposes has a right to waive such restrictions: Whitehouse v. Hugh, L. R. [1906] 2 Ch. Div. 283. The question, therefore, is whether the dispensing power reserved to the grantor is sufficiently broad to embrace the improvements contemplated by the defendant.
[105]*1053. It is a familiar rule of law that restrictive covenants are to be construed most strictly against the covenant; and unless the use complained of is plainly within the provisions of the covenant it will not be restrained: Clark v. Jammes, 87 Hun, 215 (33 N. Y. Supp. 1020); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289 (82 Atl. 561, 41 L. R. A. (N. S.) 615); Boston Baptist Social Union v. Boston University, 183 Mass. 202 (66 N. E. 714); American Unitarian Assn. v. Minot, 185 Mass. 589 (71 N. E. 551); Crofton v. St. Clement’s Church, 208 Pa. St. 209 (57 Atl. 570). Citations supporting this doctrine might be multiplied indefinitely.
4. Keeping in mind the rules above stated we will consider the nature of the restrictions quoted with reference to the case at bar. As previously intimated the right of the grantor to waive them when such waiver is desired to enable the premises to be used for school or church purposes is unlimited, unless from the peculiar language employed we adopt the view that it was the intention of the grantor to limit the waiver, to the use of such buildings for church or school purposes as had already been constructed for residence purposes. In other words, we are to assume that the grantors, when they inserted in their deeds a clause restricting the use of the granted premises to residence purposes and in the same instrument inserted an exception permitting them to waive such restriction so as to permit the use of the premises for school or church purposes, had in mind the very remarkable contingency that a purchaser might erect a dwelling-house upon the land purchased and afterward conclude to use it as a church or a schoolhouse, and that in such a contingency only would a waiver be effective. This, in our opinion would be a very strained and unnatural [106]*106construction, and one so evidently contrary to the real intent of the grantor that it must be rejected. It is evident that the grantor was looking forward to a time when the community occupying Lanrelhnrst would have become large enough to require schools and churches, and that it was its intention to retain authority to permit such buildings to be erected. The form of the conveyance was full and fair warning to every intending purchaser that such buildings might be erected whenever in the judgment of the grantor the appropriate time for constructing them had arrived. The language of the restriction supports this interpretation. We quote' from plaintiffs’ brief that part of the restrictive clause which plaintiffs deem applicable to the contention here:
“During the period of 25 years from and after the first day of January, 1909, no structure other than a single detached dwelling house, costing not less than $-each, and also, if desired, any outbuilding which may be necessary or usual, other than stables, shall be erected upon said premises; * * nor shall said premises or any buildings ‘ thereon be used or occupied otherwise than strictly for residence purposes, (or for church or school purposes, and then only with the prior consent of the party of the first part or its successors or assigns.”
It will be seen that the dispensing power in the grantor is reserved not only with respect to buildings which might at the date of the grant be erected upon the land, but in respect to the placing of other buildings upon the premises (land) granted. Plainly the intent was that the grantee should not use an already constructed residence for school or church purposes; neither was such purchaser to be permitted to erect a building for such purposes in the future without obtaining the consent of the grantor.
[107]*1075. The only remaining question is whether a convent comes within the restriction. A nun may be briefly designated as a woman of the Catholic religion who lives in a convent under vows of poverty, chastity and obedience. A convent is a house or building occupied by nuns. We are of the opinion that such a building may fairly be termed a residence or dwelling. It is a dwelling place for nuns. It would, therefore, seem, that if the other conditions of the restriction are complied with, it makes no difference how large the dwelling is or how many people occupy it: McMurty v. Phillips Investment Co., 103 Ky. 308 (45 S. W. 96, 40 L. R. A. 489), is a case in point. In that case the court said:
“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 testified that ‘there is to be no restaurant of a public nature; there is to be everything in this house to make housekeeping comfortable. Every 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 flat. 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-[108]*108choose 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.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Chief Justice McBride.
1. The clause in the various deeds limiting the buildings to be erected on lots in Laurelhurst to those designed for residential purposes is a restrictive covenant and is valid even where the building which it is proposed to erect is intended for school purposes: Doe v. Keeling, 1 Maule & S. 95; Wickenden v. Webster, 6 El. & Bl. 387. Such a restriction will also be held valid as against the erection of a church within the restricted area: St. Andrew’s Church’s Appeal, 67 Pa. St. 512. It may be taken as settled law that such covenant is valid, and that the buildings which defendant proposes to erect are within the restrictive clause above recited, unless they have been taken out of it by the consent given to the defendant by the Laurelhurst Company.
2. There can be no question but that the Laurelhurst Company having by its conveyances reserved the right to dispense with the restrictive clauses so far as they refer to buildings erected for school or church purposes has a right to waive such restrictions: Whitehouse v. Hugh, L. R. [1906] 2 Ch. Div. 283. The question, therefore, is whether the dispensing power reserved to the grantor is sufficiently broad to embrace the improvements contemplated by the defendant.
[105]*1053. It is a familiar rule of law that restrictive covenants are to be construed most strictly against the covenant; and unless the use complained of is plainly within the provisions of the covenant it will not be restrained: Clark v. Jammes, 87 Hun, 215 (33 N. Y. Supp. 1020); Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289 (82 Atl. 561, 41 L. R. A. (N. S.) 615); Boston Baptist Social Union v. Boston University, 183 Mass. 202 (66 N. E. 714); American Unitarian Assn. v. Minot, 185 Mass. 589 (71 N. E. 551); Crofton v. St. Clement’s Church, 208 Pa. St. 209 (57 Atl. 570). Citations supporting this doctrine might be multiplied indefinitely.
4. Keeping in mind the rules above stated we will consider the nature of the restrictions quoted with reference to the case at bar. As previously intimated the right of the grantor to waive them when such waiver is desired to enable the premises to be used for school or church purposes is unlimited, unless from the peculiar language employed we adopt the view that it was the intention of the grantor to limit the waiver, to the use of such buildings for church or school purposes as had already been constructed for residence purposes. In other words, we are to assume that the grantors, when they inserted in their deeds a clause restricting the use of the granted premises to residence purposes and in the same instrument inserted an exception permitting them to waive such restriction so as to permit the use of the premises for school or church purposes, had in mind the very remarkable contingency that a purchaser might erect a dwelling-house upon the land purchased and afterward conclude to use it as a church or a schoolhouse, and that in such a contingency only would a waiver be effective. This, in our opinion would be a very strained and unnatural [106]*106construction, and one so evidently contrary to the real intent of the grantor that it must be rejected. It is evident that the grantor was looking forward to a time when the community occupying Lanrelhnrst would have become large enough to require schools and churches, and that it was its intention to retain authority to permit such buildings to be erected. The form of the conveyance was full and fair warning to every intending purchaser that such buildings might be erected whenever in the judgment of the grantor the appropriate time for constructing them had arrived. The language of the restriction supports this interpretation. We quote' from plaintiffs’ brief that part of the restrictive clause which plaintiffs deem applicable to the contention here:
“During the period of 25 years from and after the first day of January, 1909, no structure other than a single detached dwelling house, costing not less than $-each, and also, if desired, any outbuilding which may be necessary or usual, other than stables, shall be erected upon said premises; * * nor shall said premises or any buildings ‘ thereon be used or occupied otherwise than strictly for residence purposes, (or for church or school purposes, and then only with the prior consent of the party of the first part or its successors or assigns.”
It will be seen that the dispensing power in the grantor is reserved not only with respect to buildings which might at the date of the grant be erected upon the land, but in respect to the placing of other buildings upon the premises (land) granted. Plainly the intent was that the grantee should not use an already constructed residence for school or church purposes; neither was such purchaser to be permitted to erect a building for such purposes in the future without obtaining the consent of the grantor.
[107]*1075. The only remaining question is whether a convent comes within the restriction. A nun may be briefly designated as a woman of the Catholic religion who lives in a convent under vows of poverty, chastity and obedience. A convent is a house or building occupied by nuns. We are of the opinion that such a building may fairly be termed a residence or dwelling. It is a dwelling place for nuns. It would, therefore, seem, that if the other conditions of the restriction are complied with, it makes no difference how large the dwelling is or how many people occupy it: McMurty v. Phillips Investment Co., 103 Ky. 308 (45 S. W. 96, 40 L. R. A. 489), is a case in point. In that case the court said:
“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 testified that ‘there is to be no restaurant of a public nature; there is to be everything in this house to make housekeeping comfortable. Every 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 flat. 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-[108]*108choose 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 express intention of the parties. The purposes for which the house is to be erected or the court was 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 that its construction is at all prohibited by this restriction clause.”
See also Roth v. Jung, 79 N. Y. Supp. 823 (79 App. Div. 1); Johnson v. Jones, 244 Pa. 386 (90 Atl. 649); Reformed Protestant Dutch Church v. Madison Avenue Bldg. Co., 163 App. Div. 359 (148 N. Y. Supp. 519); Bates v. Logeling, 137 N. Y. App. Div. 578 (122 N. Y. Supp. 251); Re Robertson, 25 Ontario Law Rep. 286.
6. There is another ground upon which the consent given by the grantor to the defendant can be sustained: That the erection of a convent may fairly be termed a “church purpose,” which is the term used in the dispensing clause of the restriction. There is a broad distinction to be drawn between this phrase and the words “for the erection of a church.” A building may be erected for church purposes other than those connected with Divine worship. The word “church” applies not only to a building used for worship, but to any body of Christians holding and propagating a [109]*109particular form of belief, as for instance the Baptist church, the Methodist church, or the Catholic church; and any building intended to be used primarily for purposes connected with the faith of such religious organization may be said to be used for church purposes. It is a matter of universal, and, therefore, judicial knowledge, that associations of nuns, sisters of charity and the like are as much a part of the organization of the Catholic church as its priesthood, and that convents are as much a part of its organization and church policy as church buildings; and in this sense the erection of a convent is as much a church purpose as a house of general worship. In the case of Craig v. First Presbyterian Church of Pittsburg, 88 Pa. St. 42 (32 Am. Rep. 417), the question was whether a building intended for the sessions of a Sunday school, ordinary lecture services connected with the church, social gatherings and fairs held for the purpose of raising funds for missionary purposes, with occasionally a “plain tea” for the benefit of those who attended from a distance, was a “religious purpose.” The court held that it was, saying:
“If the church requires the buildings for its Sabbath schools and for a lecture room, and such purposes are religious in their nature, as we have endeavored to show, of what possible matter can it be should the church utilize said building by applying it to other collateral objects, not in themselves technically religious, yet germane to the general purposes.”
Upon the whole we are of the opinion that the defendant is within its legal rights in erecting and maintaining the buildings described in the complaint; and the decree of the Circuit Court will, therefore, be affirmed. Astirmed.
[110]*110Mb. Justice Burnett and Mr. Justice Harris concur; Mr. Justice Benson taking no part in the consideration of this case.