Solar v. Ruehlman

5 Ohio Law. Abs. 206

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: July 1, 1927
• Docket: No. 200,578
• Status: Published

Opinion

ROETTINGER, J.

The matter before the court for consideration is the demurrer of Peter G. Ruehlman, Jr. to the petition of Lena Solar. The petition recited that Solar is the owner of certain real estate in the Peter G. Ruehlman subdivision and that Ruehlman, Jr. is the owner of adjoining lots; that both she and Ruehlman received their title from one Eggers now deceased, and by his (Egger’s) will, the executor sold to one Barabara Ruehlman the premises now belonging to Peter Ruehlman, Jr. and that said deed contained a restriction which prohibited the use of same for any purpose except residence. Futrher that she (Solar) received her lot from one Keeling by a deed of general warranty.

Attorneys — Harmon, Colston, Goldsmith & Hoadly for Solar; Schoer & Wesselman for Ruehlman; all of Cincinnati.

The claim is made in the petition that the premises of Ruehlman, Jr. are charged with all the restrictions in the deed from Egger’s executor to Barbara Ruehlman and that Solar by her deed is entitled to all the benefits derived from said restrictions.

It is further set forth that Ruehlman, Jr. has received releases from all other property owners in the tract and has applied and received a permit to erect a gasoline filling station upon his lot to the detriment of Solar.

• A temporary restraining order was granted May 17, 1926, and a demurrer was then filed to Solar’s petition claiming that on the face of the petition facts are not stated to constitute a cause of action because her lot was conveyed to her by a deed of general warranty which did not carry any restrictive covenants and that Ruehlman has obtained releases from all property owners that have such; and because Solar can use her property in any manner she sees fit, she is estopped to deny his right to make a similar use of his premises.

The Hamilton Common Pleas is called upon to either dissolve the temporary injunction or make same permanent and it holds:

1. A restrictive covenant in a deed is binding upon the grantor and all persons taking' under him who have notice of same, and its observance may be enforced by injunction.

2. By the weight of authority, in order for restrictive covenants to be binding, there must be notice, either actual, implied, or of record, and it cannot be denied that Ruehlman took with notice.

3. “When value is paid for the estate, such restrictive stipulation is construed to be a covenant running with the land in the nature of a trust - - - - a court of equity will, in a proper action decree the performance of the trust by confirming the uses of the estate to the uses and purposes expressed in the deed.” 58 OS. 67.

4. In such cases the restricted use of the estate becomes a part of the consideration, and is consented to by the grantee; and it is no hardship on him and his assigns, to be compelled to observe the covenants contained in the deed.

5. It is not necessary for Solar to show that the covenant is for the benefit of all land in any given deed in order to obtain relief.

6.The restriction therefore flows for the benefit of Solar and the temporary restraining order is hereby made permanent.