Shubert v. Eastman Realty Co.

1 Ohio C.C. (n.s.) 585, 1903 Ohio Misc. LEXIS 210

• Court: Ohio Circuit Courts
• Decided: November 4, 1903
• Status: Published

Opinion

Plaintiff is the owner of sub-lot 66 in Henry Lower’s subdivision of part- of original Brooklyn township lots numbers 9 -and 10, as shown on the plat of said subdivision, recorded in Volume 19 of Maps, page 28 of Cuyahoga County Records. His lot is 56.5 feet front 'on Detroit street and 200 feet -deep along the westerly line of Eastman street. Defendant is the owner of suib-lots 23, 24 and 25 in said Lower’s subdivision, making a fronttage of 166 1-2 feet on Detroit street and having ’a depth of 200 feet long along the easterly side of Eastman street.

Plaintiff alleges that he brings his action in his own behalf and for the use of numerous -other property owners having lots fronting on Detroit' street to restrain the defendant from violating certain building restrictions contained in the deeds to their property by ■erecting a four-story apartment house within forty feet of the Detroit street line, it being claimed that defendant’s deeds provide that only one dwelling house he erected upon each of its lots and •that said dwelling houses he built back fifty feet from -the street line. It is claimed that Henry Lower, wbo subdivided the land and platted the allotment, and under whom both parties claim, in each and every deed conveying lots on Detroit street inserted similar covenants, restrictions and limitations as to the character of the improvements to be built upon said 1-ots by the purchasers, the distance from the street- line that improvements should be erected, etc.; that -all such lot purchasers, including plaintiff, but excepting defendant, had complied with such restrictions.

Plaintiff says that' defendant’s violation- of said conditions and restrictions will obstruct the view of other lot purchasers in the subdivision, including himself, and shut off their light and air, and depreciate the value of their property for private residence purposes.

Defendant’s ánswer denies -that it is violating any of said restrict tions, and further alleges that none of the limitations or restrictions inserted by Lower in his deeds to his Detroit street lots were inserted for -the benefit of adjoining property owners, nor pursuant to any general scheme of improvement, but for his own benefit, and that he is not complaining; that said restrictions as to the various lots, ten in number, on Detroit street, wexe not uniform and have not been complied with by plaintiff or any other lot owners, but that by common consent all lot owners on Detroit street have disregarded said restrictions.

By the pleadings this case is brought squarely under the rule of law laid down in 1 Jones on the Law of Real Property in Conveyancing, Section 771:

“Where the owner of a tract of land adopte a general scheme for its improvement, dividing it into lots and conveying them with uniform restrictions as-to’the-purposes for-which the'.land may be used, such restrictions create equitable easements in favor of the owners of the several lots which may be enforced in equity by one of such owners.”

Let us examine the restrictions inserted by Henry Lower in the deeds of the ten lots on Detroit street, in order that we may determine whether the owner of the original tract of land when he divided it into lots adopted a uniform scheme for its improvement and- conveyed the lots with uniform restrictions as to the purposes fox which the land might be used.

Two lots (69 and 70) were conveyed without any restrictions whatsoever.

Four lots (25, 66, 67 and 68) were conveyed with restrictions that the building line should be fifty feet back from the sidewalk.

Four lote (21, 22, 23 and 24) have a forty foot building line.

Five lots (21, 22, 23, 24 and 66) have a condition that but one dwelling house shall be erected thereon.

On six lots (21, 22, 23, 24, 25 and 68) liquor can not be sold.

Six lots (23, 24, 25, 66, 67 and 68) are to be used for residence purposes only.

It therefore appears that no uniform scheme of improvement was adopted either as to the building line or as to there being but one dwelling house upon each lot.

Foran, McTighe & Gage, for plaintiff. Higley & Maurer, for defendant.

It follows that plaintiff is not entitled to the relief he prays for. This view of the case makes it unnecessary for this court to determine whether an apartment house is “one dwelling house.” It is admitted that defendant might build an apartment house on lot 25, but it is claimed that he could not build one on lot 23 or lot 24. Lot 25 is the lot nearest plaintiff’s lot, and an apartment house on that lot would do all the damage plaintiff claims would flow from any apartment house on any of defendant’s lots. This inconsistency illustrates the soundness and wholesomeness of the rule of law above quoted from Jones on-Real Property in Conveyancing.

There is another reason why plaintiff is not entitled to an injunction.

The proof shows that the building line of plaintiff’s lot is fifty feet from the street line. The main part of his house conforms ■to the restrictions in his deed, but' a bay window two stories high is* within forty-five feet of the street line. This bay window is in the shape of a tower, is a substantial part of his house, and encloses rooms therein. His porch is a heavy, substantial structure having a solid foundation and slate roof, heavy columns and of such style and construction that it must substantially interfere with the view of his neighbors. This porch is within forty feet of the street line.

It can not be contended that plaintiff can compel his neighbor to put his building back fifty feet from the street when he himself is within forty or forty-five feet of the street. And if he asks his neighbor to go back as far as he is from the street, should the porch not be considered, the line established would be not more than forty-five feet from the street and he would be asking us to enforce a building restriction established, not by the original owner of the land for the common benefit of all lot owners, but by one lot owner for his own benefit and to suit his own convenience.

The petition is dismissed at plaintiff’s costs.