Brady v. Farley

Grason, J., delivered the opinion of the Court. The court adopts the opinion of the Chancellor below: “This is a suit for the specific performance of a contract for the sale of the leasehold interest in the prop ²⁵⁷ erty known as 700 Manchester Road, Kensington, Baltimore County. The defendant refused to take title on the ground that the title is unmarketable in that it is a part of a lot marked ‘proposed swimming pooh on the recorded plat of Kensington. The facts are fully and accurately stated in the memorandum on behalf of the complainant.

It is clear that the swimming pool was merely something contemplated in the early stages of the development. It was a mere hope and expectation- — as stated in the memorandum ‘a prospective rather than a present intention to restrict the use of the land and to build the “proposed swimming pool” ’. The ‘proposed swimming pool’ lot in 1926 was about half covered by an old mill or ice pond, fed by an open stream. Since then it had been continually used for dumping debris until it was filled up.

Nothing was ever done or started to make it suitable as a swimming pool location. In 1938 the Kensington Realty Corporation erected thereon a large building shed. This shed has been partly torn down by the plaintiff in order to erect houses on the lot. Three valuable detached brick dwellings have been erected on the proposed swimming pool lot.

None of the purchasers of lots in the development has ever objected to the filling up of the lot or the erection of the dwellings. On the contrary, many of the owners in the development have expressed gratification that the lot had been improved. Apparently, it was an eyesore and somewhat of a nuisance. There was no clear, present intention to dedicate or restrict the use of the lot of ground in question.

The word ‘proposed’ on the plat and the oral restrictions made to the early purchasers of lots in the Kensington tract merely indicated a prospective or possible intention to restrict the use of the lot to a swimming pool. The whole idea of the swimming pool appears to have been a nebulous, impractical, tentative proposition, — the impractical dream of an optimistic real estate developer. ²⁵⁸ In the case of the City of Brownsville v. West et al., Tex. Civ. App., 1941, 149 S. W. 2d 1034, 1038 , quoted in the complainant’s brief, is apparently on all fours with the case at bar.

In that case there was a plat with a parcel of land marked ‘proposed park.’ The plat was recorded and many lots sold with reference to it, but no attempt was made to use the lot as a park. The Court held that: ‘* * * the words, ‘Proposed Park’ were used, instead of just the word ‘Park.’ This indicates that the intention to dedicate a park was prospective rather than present.’ In the recent case of Norris v. Williams, 189 Md. 73, 76 , 54 A. 2d 331, 332 , Judge Delaplaine, speaking for the Court, said: ‘However, restrictions upon the use of land are in derogation of the natural right which an owner possesses to use and enjoy his property, and are repugnant to trade and commerce. Consequently, restrictive covenants are construed strictly against their establishment and effect, and liberally in support of the unrestricted use of the land. Himmel v. Hendler, 161 Md. 181 , 155 A. 316 ; Ferguson v. Beth-Mary Steel Corporation, 166 Md. 666 , 172 A. 238 ; Baltimore Butchers, Abbatoir & Live Stock Co. v. Union Rendering Co., 179 Md. 117 , 17 A.