Easton v. the Careybrook Co.

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Prince George’s County directing the appellants to convey to the appellees, Edward A. Lyons and wife, a parcel of land containing approximately 6,000 square feet, without cost to the appellees. The proceeding for injunction and damages was instituted by The Careybrook Co., Inc., and sixteen other lot owners in what is known as the Careybrook Subdivision, to enforce a restrictive covenant contained in a deed from the company to the appellants dated July 6, 1950, conveying Lot No. 1 in the subdivision, as shown on a recorded plat and containing about 38,100 square feet. Covenant 13 provided: “No lot shall be divided in such a manner as to result in any lot having an area of less than 16,000 square feet.

For the purpose of computing this minimum area, there may be included any portion of a lot dedicated to public use.” The only other covenants that seem at all pertinent to the present controversy are those providing: that “all dwellings shall be built for single-family occupancy”, that no shop or store shall be erected or noxious trade carried on upon any lot, and that certain setbacks be observed. It is further provided that the covenants “run with the land and shall be binding on all parties or persons under them until January 1, 1959”, and for further periods unless modified by a vote of the majority of the lot owners; and that “if the parties hereto, or any of them, or their heirs or assigns, shall violate * * * any of the covenants * * *, it shall be lawful for any other person * * * owning or occupying any of the land herein conveyed, to * * * enjoin him or them from so doing, or to recover damages * * * or both.” Similar covenants were included in the deeds ²⁸⁹ to all the other lots in the subdivision that have been conveyed. The subdivision contains about 20 acres of land, laid out in 23 lots, all but one of which have been sold and conveyed by the company. Shortly after the appellants acquired Lot No. 1 they conveyed a part of Lot No. 1, known as Parcel A and containing 16,000 square feet, to a Mr. Ramey who in turn conveyed it to Mr. Boswell, one of the complainants, who built a residence thereon.

On November 28, 1952, the appellants conveyed another part of Lot No. 1, known as Parcel B and containing 16,171 square feet to themselves and to Sylvester E. Theiss and wife, and their survivors, heirs and assigns. The grantees constructed a house on Parcel B which they conveyed on January 4, 1954, to Edward A. Lyons and wife, who were named as respondents in the bill of complaint and also filed a cross-bill, praying that any damages awarded against them be paid by the Eastons. In each of the deeds conveying Parcel B there was a clause “Subject to the covenants [and restrictions] of record.” The effect of these conveyances was to leave title to the remainder of Lot No. 1, known as Parcel C and containing about 6,000 square feet, in the appellants. This is a strip of land 40 feet in width running across the rear of Parcels A and B. The appellants own a lot immediately adjoining Parcel C opposite Parcels A and B, but in another subdivision known as Cedar Ridge, on which they have constructed a substantial dwelling.

They are using Parcel C for the purposes of a private driveway leading to their garage, and disclaim any intention to use it for other purposes or to sell it. It was shown in the testimony that they were notified by letter dated May 29, 1951, before they made any conveyance of Parcel B, of the claim that their proposed action would be construed by the company as a violation of Covenant 13 and would subject them to suit, but no suit was filed until September 1, 1954. It is well established that covenants restricting the use of property are valid and enforceable at the instance of other lot owners in an area developed according to a general plan. Turner v. Brocato, 206 Md. 336 , and cases cited.

This is particularly true where the violator has actual as well as constructive notice. Coomes v. Aero Theatre, etc., 207 Md. ²⁹⁰ 432; King v. Waigand, 208 Md. 308, 311. In the instant case Mr. Easton was one of the original promoters and developers of Careybrook Subdivision, and prepared or approved the covenants. He testified that “The purpose and intent of the covenant [13] as I understood it was to insure there would be large lots and the houses would be far apart and privacy would be insured. * * * no small houses would be built on small lots, which would reduce the value of all the property.” He also testified: “If I had retained that property [Parcel C] with the purpose of building on it, I think it would be in violation.” Since he did not intend to usp it as a lot for building purposes, but only for a