Club Manor, Inc. v. Oheb Shalom Congregation

Brune, C. J., delivered the opinion of the Court. The two principal questions in this case grow out of a restriction upon the use of land. The first concerns the enforceability of the restriction; the second, its meaning. One of the appellants, a respondent below, (“Club Manor”), is the owner of a lot known as No. 7300 Park Heights Avenue in the City of Baltimore.

The other appellant, also a respondent below, American Realty Incorporated (“American Realty”) is more or less affiliated with Club Manor. American Realty obtained a permit in September, 1955, to build the apartment house at No. 7300 Park Heights Avenue which is referred to below. Club Manor was not incorporated until some months later. The Oheb Shalom Congregation of Baltimore City (the “Congregation”), one of the appellees, and the original complainant in this case, owns the property known as No. 7310 Park Heights Avenue which adjoins Club Manor’s property on its northwest side.

The other appellee, Mrs. Ella Keyser Miller, the intervening complainant, owns the property known as No. 7228 Park Heights Avenue which adjoins Club Manor’s property on its southeast side. (Despite the difference in block numbers, there is no street separating No. 7228 and No. 7300.) The restriction contained in deeds in Club Manor’s chain of title which is directly in issue in this suit prohibits the erection on what is now Club Manor’s lot of “more than one residence or dwelling house” within 250 feet of Park Heights ⁴⁶⁸ Avenue. Club Manor proposed to build a 19-unit apartment house on its lot, one part of which designated as “Unit A” and designed to contain four separate apartments under one roof was to be located in that portion of the lot which lies within 250 feet of the southwest side of Park Heights Avenue. Club Manor started actual construction work by excavating for the foundation of Unit A, as well as other portions of the building, on January 9, 1956.

On January 18th counsel for the Congregation wrote to Club Manor protesting unsuccessfully against the construction of Unit A. This suit, seeking an injunction against the construction of any part of the apartment house within the 250-foot zone, was filed on January 25, 1956, and the case was tried on February 8th. Briefs and somewhat voluminous exhibits were filed after the hearing. The Court’s opinion, filed on April 2nd, upheld the applicability and enforceability of the 250-foot setback restriction, and a decree in conformity therewith was filed on April 12th. The appeal is from that decree.

It is admitted that the respondents had full knowledge of the restrictions in the chain of title to the Club Manor lot. The first of the two main questions is whether or not the setback restriction against more than one residence or dwelling house in the 250-foot zone is enforceable by the complainants, or either of them, against the respondents. This requires the consideration of a number of deeds and of facts and circumstances which may be gleaned from them and from other evidence in the case. The Congregation acquired title to its property from Samuel M. Hecht and wife by a deed dated September 27,- 1955.

This property had previously been the residence of the late Moses S. Hecht, and prior to 1905 had been part of a tract known as “Darbyshire” lying between Seven Mile Lane on the south and Slade Avenue on the north, having a frontage of about 1864 feet on Park Heights Avenue between the two streets and having a depth measuring from Park Heights Avenue of about 500 feet or more. In 1905, this tract was acquired by the Baltimore Ground Rent Company of Baltimore City (“The Ground Rent Company”). No plat of Darbyshire appears to have been recorded. There ⁴⁶⁹ seems to have been no great promotional effort to sell lots in the tract.

On the contrary, The Ground Rent Company sold or conveyed lots occasionally over a period of about thirteen years, beginning in January, 1906. The area has been and continues to be a high grade, suburban, residential development. Apartment houses have now pushed out to the neighborhood, some being on the other side of Park Heights Avenue, which is a wide boulevard, and some being located somewhat nearer to the center of Baltimore City. In 1905 all of Darby-shire was in Baltimore County; since the Annexation Act of 1918 (Chapter 82 of the Acts of that year) all but the northwest portion is in Baltimore City.

The absence of any plat prepared by The Ground Rent Company makes any statement with regard to the number of lots into which it proposed to divide the property somewhat conjectural. Prom the copies of deeds executed by the Ground Rent Company which appear in the record, it seems that the basic unit was intended to be a lot having a frontage of 100 feet on Park Heights Avenue and a more or less uniform depth of about 500 feet or more, except at the northern end of the tract, where the property narrowed down. However, at the southern end, The Ground Rent Company in July, 1907, sold as a unit a tract fronting 400 feet on Park Heights Avenue (usually referred to below as lot No. 9) to Maurice E. Skinner, who seems to have been very active in the Company’s affairs, if, indeed, he did not actually control it. The present division of the lots is shown on a plat dated November, 1931, prepared for tax purposes by the City of Baltimore, a copy of which is filed as an exhibit.

For convenience of identification we shall refer to the various lots by the numbers given them on the tax plat above mentioned. No. 1 is at the northerly end of the tract and has a frontage of about 364 feet on Park Heights Avenue and of about 24 feet on Slade Avenue. It is somewhat irregular in shape and is actually five-sided, but on the plat it looks very much like a triangle with the northerly and westerly corners cut off. Lot No. 9 is at the southerly end of the tract and, as above stated, has a frontage of 400 feet.

There are seven other lots shown on the plat between lots Nos. 1 and 9. These ⁴⁷⁰ have an aggregate frontage of 1100 feet on Park Heights Avenue. Five of them, Nos. 2, 3, 5, 6 and 8, each have a frontage of 100 feet; lot No. 7 has a frontage of 200 feet, and lot No. 4 has a frontage of 400 feet. Lot No. 5 (No. 7300 Park Heights Avenue) belongs to Club Manor, lot No. 6 (No. 7228 Park Heights Avenue) belongs to Mrs. Miller, and lot No. 4 (No. 7310 Park Heights Avenue) belongs to the Congregation.

Where the identification of different parts of lot No. 4 seems helpful, we shall designate each component part thereof having a 100-foot frontage on Park Heights Avenue by a letter as well as by number, that is, as lots Nos. 4A, 4B, 4C and 4D, respectively. Lot No. 4A adjoins lot No. 3 and lot No. 4D adjoins lot No. 5. Lot No. 8 was the first one conveyed by The Ground Rent Company. By deed dated January 1, 1906, it was granted to a Miss Edwards and to a Miss Barnett.

Among the restrictions imposed on this land were a prohibition against the erection of any dwelling or other structure within 100 feet of Park Heights Avenue and another against the erection of more than one residence or dwelling house within 250 feet of that avenue. By deed dated July 1, 1907, The Ground Rent Company conveyed lot No. 9 to Maurice E. Skinner. The grantor reserved a 30-foot right of way “over the westerly end of said lot * * * for the benefit and use of this lot and the other lots owned by The Baltimore Ground Rent Company comprising part of the tract of land known as Darbyshire binding on said right of way.” Next came a deed from The Ground Rent Company to one Howser,. dated March 1, 1908, transferring the leasehold interest in lot No. 6 (now the Miller lot) subject to what we shall call the “standard setback restrictions”. The first of these prohibited the erection of any dwelling or other structure within 175 feet of Park Heights Avenue, and the second prohibited the erection of more than one residence or dwelling house within 250 feet of Park Heights Avenue.

Chronologically, the next document in the record is an agreement dated April 6, 1908, between The Ground Rent Company as the first party, Edwards and Barnett as the second parties, and Skinner and wife and a savings bank, which held ⁴⁷¹ a mortgage on lot No. 9, as the third parties. This agreement contained a mutual release of the right of way over lot No. 9, and it also imposed a 175-foot setback provision for any building on lot No. 8, thus superseding or extending the 100-foot setback in the Edwards-Barnett deed to lot No. 8 and bringing lot No. 8 under the standard setback restrictions described in connection with the Howser deed. By deed dated May 12, 1908, acknowledged by Mr. Skinner as its attorney-in-fact, The Ground Rent Company conveyed five lots — -Nos. 4A, 4B, 4C, 4D and 5 — to one Frank William Bolgiano, who was the President of The Ground Rent Company. This deed contained the standard setback restrictions, and the 250-foot, single residence restriction was made applicable to each of the five lots, each of which had a frontage of 100 feet.

By a deed dated May 1, 1915, under which Mr. Skinner was also named as its attorney-in-fact, The Ground Rent Company conveyed lot No. 7 to Mr. Bolgiano. This lot had a frontage of 200 feet on Park Heights Avenue. The single residence, 250-foot setback restriction applied to the whole of this lot and was thus twice as severe as the restrictions on each of the five 100-foot lots conveyed to Mr. Bolgiano in 1908. Lot No. 2 was conveyed by The Ground Rent Company to Clara I. Waters, by a deed dated April 7, 1916, which contained the standard setback restrictions.

Next in chronological order came a reconveyance by Bolgiano to The Ground Rent Company of lots Nos. 4A, 4B, 4C, 4D and 5, by deed dated July 14, 1916. This deed is not in the record. (We were informed at the argument that it contained the same restrictions as those contained in the deed of the same lots from The Ground Rent Company to Bolgiano, dated May 12, 1908.) By deed dated August 21, 1916, The Ground Rent Company conveyed lot No. 1, the roughly triangular lot at the north end of Darbyshire, to Plenry F. Westheimer. This deed contained the usual 175-foot setback restriction applicable to any structure, but the 250-foot setback restriction reads as follows: “(4) That not more than one residence or dwelling house shall be erected upon the above described land for a depth of two ⁴⁷² hundred and fifty feet from Park Heights Avenue or any subdivision thereof of less frontage on Park Heights Avenue than one hundred feet.’’ (Italics supplied.) We shall revert to these italicized words later.

Lot No. 3 and lot No. 4A (the latter of which had been re-conveyed by Bolgiano) were transferred to Mrs. Rose Burgunder by a deed dated April 22, 1919, and were made subject to the standard setback restrictions. The next and only other departure from the standard setback restrictions in a deed executed by The Ground Rent Company, conveying any of the Darbyshire lots, occurs in a deed dated April 29, 1919, by which The Ground Rent Company transferred to Maurice E. Skinner and to Edwin W. Herrmann (then President of The Ground Rent Company), in proportions of four-fifths and one-fifth, a single tract, without any separate designation of individual lots, which actually consisted of lots Nos. 4B, 4C, 4D and 5, and which had a frontage of 400 feet on Park Heights Avenue. The deed refers to this tract as being part of the land conveyed by Bolgiano to The Ground Rent Company by the deed above mentioned, dated July 14, 1916. The deed to Skinner and Herrmann contained the 175-foot setback clause common to all of the deeds, but the 250-foot clause was very similar to that contained in the Westheimer deed to lot No. 1 and read as follows: “(3) That not more than one residence or dwelling house shall be erected upon any subdivision of the above described lot having a frontage of less than one hundred feet on Park Heights Avenue for a depth of two hundred and fifty feet from Park Heights Avenue.” (Italics supplied.) No reason for this variation is stated.

A few months later, by a deed dated August 26, 1919, Skinner and Herrmann and their wives conveyed lots Nos. 4D and 5 to Louis Katzenstein and wife. This deed made each of these lots subject to both of the standard setback restrictions and it did not contain the equivalent of the italicized language in the deed to Skinner and Herrmann from The Ground Rent Company. By a deed dated December 31, 1920, the Katzensteins conveyed lot No. 5 to Philip Kahn and wife. This deed con ⁴⁷³ tained the standard setback restrictions, and this deed forms a part of the appellants’ chain of title.

A later deed in the same chain, dated July 11, 1945, from Maxwell A. Behrend and wife to Nathan T. Fisher and wife, contained the standard setback restrictions, but added one more, which is very similar to the 250-foot restriction contained in the Westheimer deed and in the deed from The Ground Rent Company to Skinner and Herrmann. It reads as follows: “(7) Only one dwelling may be erected upon any subdivision having a frontage of less than 100 feet on Park Heights Avenue for a depth of 250 feet from Park Heights Avenue.” (Italics supplied.) For convenience, these variant provisions with regard to the 250-foot setback restriction in the three deeds above mentioned will be referred to as the “modified form.” Despite the somewhat voluminous deeds contained in the record there are many blanks as to the devolution of title of each of the parties. It appears from a statement in the deed from the Behrends to the Fishers that lot No. 5 was at one time owned by Mr. and Mrs. Moses S. Hecht. We are not informed, however, as to the date or dates when Mr. Moses S. Hecht acquired any of the lots now owned by the Congregation or the lot now owned by Club Manor, nor do we have any information in the record as to what restrictions, if any, were contained in the deed from Moses S. Hecht and wife to the predecessor in title of Club Manor.

The modified form of the 250-foot setback restriction clearly contemplates the possible subdivision of the