Carroll County Development Corp. v. Buckworth

Brune, C. J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Carroll County dismissing the appellant’s bill of complaint which sought an injunction against the appellees to prevent the alleged violation of one or more restrictive covenants applicable to land upon which the individual appellees, the Buckworths, ⁵⁵⁰ as owners, were constructing a house. The corporate appellee is a bank holding a mortgage on the Buckworth property. It took no active part in the case.

The Buckworths’ land is located in a development known as “Sullivan Heights,” at Westminster, Carroll County. Other land in this development is owned by the appellant, Carroll County Development Corporation (sometimes referred to below as “the Company”). It appears that on July 8, 1960, Russell L. Bloom and Mary D. Bloom, his wife, being then the owners of Sullivan Heights, by a deed dated July 8, 1960, duly recorded ten days later, conveyed a lot in Sullivan Heights to Edward A. Kennedy and wife, subject to sixteen covenants and conditions (sometimes referred to below as “restrictions”). It is not contested that these restrictions were made applicable to other lots in Sullivan Heights, including what is now the Buckworths’, or that the Buckworths had constructive, if not actual, notice thereof and are bound by such notice.

It also appears that three plats (two of them apparently revisions) of Sullivan Heights were duly recorded. These did not refer to the restrictions, but did show required setbacks. As to the Buckworths’ lot, this setback was first to be thirty-five feet, but this was later reduced to twenty-five feet. On September 10, 1960, the Blooms conveyed, by a deed duly recorded, to Andrew J. Shaw and wife three parcels of land in Sullivan Heights, subject to the restrictions in the Kennedy deed.

The Blooms reserved approximately 4.3 acres in the development, and the conveyance appears to have covered all other land then owned by them in Sullivan Heights. By a deed dated October 20, 1961, and duly recorded, the Shaws conveyed several lots, including what is now the Buckworths’, to The Schaeffer Lumber Company, subject to such lawful restrictions as might be applicable thereto. By deed dated February 13, 1963, The Schaeffer Lumber Company, which made no reference to restrictions, conveyed one of these lots (No. 8 in Block B) to the Buckworths, and soon thereafter the Buckworths started to build a house on their lot. The Shaws, by a deed dated December 29, 1961, also duly recorded, conveyed lots then owned by them in Sullivan Heights to the appellant, the Company, of which Mr. Shaw is ⁵⁵¹ the president, and he is evidently the dominant person in its affairs.

When Mr. Shaw saw that construction had begun on the Buckworths’ lot, he immediately raised an objection based upon an alleged violation of the setback requirement. This objection proved untenable and he then shifted his ground of objection to a claim of noncompliance with a restriction requiring approval of plans and specifications for houses to be constructed. This is one of the five restrictions deemed pertinent to the case at the trial. It is designated as No. 5 and requires, in brief, that before any building, or any addition or alteration thereto, shall be commenced, plans and specifications therefor, showing (inter alia) heights and location of the building with respect to topography and ground elevation, shall first be submitted to and approved in writing by the Blooms, “their heirs and assigns.” The other four restrictions above referred to are Nos. 13, 14,15 and 16, which are stated or summarized below: No. 13 (which is inaccurately printed in the appellant’s appendix) reads as follows: “13.

Enforcement. The provisions herein contained shall run with and bind the land and shall inure to the benefit of and be enforceable by Russell L. Bloom and Mary D. Bloom, his wife, their heirs and assigns or the Owner of the lease-hold or fee simple (but not reversionary or mortgagee interest) of any lot, their respective heirs, personal representatives, successors and assigns, and failure by Russell L. Bloom and Mary D. Bloom, his wife, their heirs and assigns or any lot owner to enforce any restriction, condition, covenant or assignment herein contained shall not in any event be deemed a waiver of the right to do so thereafter as to the same breach or as to one occurring prior or subsequent thereto.” No 14, entitled “Right to Abate Violation,” in substance confers upon the Blooms, “their heirs and assigns,” in case of any violation of any of the restrictions or covenants, “in addi ⁵⁵² tion to all other remedies (1) the right to enter upon the land” and “summarily to abate or remove, at the expense of the owner thereof any erection, thing or condition” existing in violation of the restrictions, without thereby incurring liability, and (2) to apply for injunctive relief, “since the parties * * * agree that any breach * * * cannot be compensated adequately by recovery of damages.” No. 15 is badly garbled through an obvious omission in the first sentence. This condition or restriction undertakes to deal with the assignability of “the rights and powers, titles easement and estate reserved to the Blooms, their heirs and assigns.” The second sentence does make it clear that any would-be assignee or transferee of these rights and powers can acquire them only by joining in an appropriate instrument in writing evidencing consent to the acceptance of such rights and powers, and that any such instrument must be duly recorded among the land records of the County. It is conceded that neither the Shaws nor the Company ever complied with either of these conditions.

Hence, the appellant Company can derive no powers by virtue of this covenant. No. 16, headed “Right to Modify,” reserves to the Blooms the right to annul, waive, change or modify any restrictions or covenants so long as such changes do not substantially affect the rights of any lot owner. If they would affect any lot owners substantially, the