Himmel v. Hendler

Digges, J., delivered the opinion of the Court. The question presented for determination by this appeal is: Does the structure proposed to be erected by the appellees (defendants below) violate the restrictive covenant contained in the deed under which they hold? The chancellor determined that it did not, and dismissed the bill of complaint which sought to enjoin the defendants from erecting the proposed fence. From that action the plaintiff appealed.

The facts necessary for an understanding of this question may be stated as follows: The plaintiff and defendants are the owners of adjoining lots fronting on Lake Drive in Baltimore City. These properties are located in a beautiful residential section, and are each improved by handsome dwellings.. Both of the parties derive their title from a common source, one Michael S'tein; the plaintiff acquiring her lot from Stein by mesne conveyances, while the deed of the defendants for their lot came directly from Stein. On November 15th, 1920, 'Stein, at that time being the owner of both lots., conveyed the lot now belonging to the plaintiff to* Samuel Blum.

This deed, after describing the lot conveyed, contained the following provision: “This deed made subject to the covenants, conditions and restrictions agreed upon between parties of the first and second parts hereto, which are hereby specifically agreed to. by the said parties of the first and second part, and ¹⁸³ which are intended by tbe parties hereto to he covenants running with and binding the respective properties of the parties hereto as herein specified or referred to_and which are as follows: The said grantee covenants and agrees for himself, his heirs and assigns, that he and they will leave open and not build thereon the strip of land ten feet wide along the entire westernmost side of the lot herein described adjoining the remaining portion of the said whole tract conveyed as aforesaid by William L. Strans and wife to the parties of the first part hereto hv deed dated June 1st, 1920, and recorded among the Land Records of Baltimore City in Liber S. O. L. Eo. 3595, folio 22, etc., retained by tbe said parties of the first part hereto so that said ten feet of the land shall always remain open and not be built upon and that the said grantee, his heirs and assigns, will not at any time hereafter construct, erect, or cause or permit to be constructed or erected on any part or portion of the land conveyed hereby any building or structure to be used for any purpose other than a private dwelling and no such building or structure shall exceed four stories in height, and accordingly said grantee covenants and agrees for himself, his heirs and assigns, that he and they will not any time hereafter construct or erect or cause or permit to> be constructed or erected on any part or portion of the land hereby conveyed any store, shop, factory, or any building or structure of any kind or character what soever other than for private dwelling purposes only and not exceeding four stories in height, but nothing herein contained shall ho construed as restricting or prohibiting the use of such fo-ur-story dwelling as and for an apartment hottse. Said grantors who are the owners of the remaining portion of the lot of ground cpnveyed as aforesaid by William L. Straus and wife to tbe parties of the first part above referred to, being tbe portion thereof not comprised in the lines of the lot hereby conveyed, hereby covenant and agree for themselves, their heirs and assigns, that they will leave open and not build upon the strip of land ten feet wide along the entire easternmost side of said remaining portion and adjoining the said ten-foot strip hereinbefore agreed to he similarly left ¹⁸⁴ open by the grantee. ' And the grantors further covenant and agree for themselves and their heirs and assigns that they will not at any time hereafter construct or erect or cause or permit to be constructed or erected on any portion of the said remaining part of said lot conveyed to them as aforesaid by William L. Straus and wife any building -or structure to be; used for any purpose other than a private dwelling and no such building or structure shall exceed four stories in height. And the said grantors accordingly hereby further covenant and agree for themselves, their heirs and assigns, that they will not at any time hereafter construct or erect or cause or permit to' be constructed or erected on any part of the remaining portion of said lot conveyed by William L. Straus and wife to them as aforesaid any store, shop, factory, building or structure of any kind or character whatsoever other than one for private dwelling purposes only not exceeding four stories in height, but nothing herein contained shall be construed as restricting or prohibiting the use of such four-story dwelling as and for an apartment house,” On M!ay 2nd, 1927, Stein and wife conveyed to the appellees that lot which was made subject to the restrictions and covenants contained in the aforesaid deed to Blum. It appears, therefore, that at the time these proceedings were instituted the appellant owned the lot conveyed by the Blum deed, and the appellees owned the lot adjoining, subject to the covenants agreed to by Stein in the Blum deed.

The greatest depth of these two lots is from a northerly to southerly direction, fronting on Lake Drive and running to an alley in the real', the division line between them being approximately 129 feet 9% inches in length. The appellant’s property lies east of the division line, and the appellees’ lot west of said line. It will therefore be seen that, by covenants binding upon the parties hereto, there is a strip of land extending from Lake Drive to the before-mentioned alley twenty feet wide, ten feet on either side of said divisional line, which the parties have agreed by said covenants to “leave open and not build” upon, so that said twenty feet of land shall always ¹⁸⁵ remain open and not be built upon; this covenant being binding upon the appellant in respect to the ten-foot strip east of said divisional line, and binding npon the appellees in respect to the ten-foot strip west of said line. At the time the appellees purchased their lot from Stein, he was living in a dwelling house located upon that lot.

At the time the appellant purchased her lot, there was no building or improvement thereon. On the south line of the appellant’s lot, separating it from the alley, there was an iron picket fence. This fence extended along the ^ end of the appellant’s restricted ten-foot strip, while along the appellees’ south line there were a number of posts fastened with wire, and hedge growing so as to obscure the posts; and this fence or hedge extended along the south end of the appellees’ restricted teu-foot strip. It is alleged by the bill and admitted by the answer that the appellees have had certain trenches dug in said strip belonging to them, and along the boundary line between the two lots, and have had laid down a foundation and propose to erect on said foundation and along the boundary line between the two lots, for a distance of approximately forty feet from the rear of said lots, and also along the rear of said ten-foot strip at the alley, and across said ten-foot strip at approximately forty feet from the rear of said lot, a brick fence approximately three feet high, brick posts spaced about eight feet apart, with a paling or lattice fence between said posts; that they contemplate using the rear of said ten-foot strip on their own lot, together with other adjoining parts of said Jot, as a service yard for the hanging of clothes while drying, and for other uses usual to a dwelling house and service yard; that the proposed service yard extends only approximately forty feet- from the alley, and does not extend to a point opposite the residence of the appellant.

In other words, what the appellees propose to do is to build a fence of tbe character above mentioned along the southern end of their lot, running in an easterly direction, binding on the alley, to the divisional line, then in a northerly direction with the divisional line for a distance of forty feet, then in a westerly direction across the restricted strip to the appellees’ dwelling. This proposal, ¹⁸⁶ if carried out, would inclose in the service yard a portion of the restricted area ten feet wide and forty feet long. Their grantor, Stein, covenanted (which covenant is binding upon the appellees) that he, his heirs and assigns, would leave open and not build upon the strip of land ten feet wide along the entire easternmost side of said remaining portion and adjoining the said ten-foot strip hereinbefore agreed to be similarly left open by the grantee. The record further discloses that the appellant has utilized the southern part of her restricted ten-foot strip by laying a concrete pavement thereon, used in driving and turning automobiles going in and out of her garage, which is situated on the unrestricted part of her lot.

She has also constructed at the south end of the divisional line, on the restricted strip, a brick post approximately six feet high and two feet square. From this post she has constructed a concrete coping on her side, and adjoining the division line over the restricted area, slightly less than forty feet, then across her restricted ten-foot strip in the direction of her dwelling. This coping incloses or marks the concrete pavement, and, according to the testimony, was put there for the twofold purpose of preventing machines from encroaching upon the appellees’ lawn, and also to prevent the falling away of the appellees’ soil. The top of this coping is practically flush with the appellees’ lawn, but the appellant’s concrete pavement is several inches lower, and slopes slightly in all directions towards the center, where there is a catch-basin for drainage.

The house on the appellant’s lot is not built exactly parallel with the divisional line, but is placed on an angle, so that the front corner on the house is at the edge of the strip, and then recedes from it as it proceeds towards the back. The cornice at the comer of the porch of the house, which is built on the strip side of the lot, extends over the strip about an inch. In the summer awnings are swung over the strip from this side porch. The restricted strip, back to the concrete pavement or driveway, is adorned with shrubbery.

The distance from the rear of the porch to the proposed- wall or fence, at its nearest point, is approximately forty feet. This testimony shows the use ¹⁸⁷ which the appellant has made of the restricted strip comprising the west portion of her lot. The question simply and plainly stated, therefore, is: After the completion of the appellees’ proposal, will the entire strip covered by the restrictions binding upon them be “left open and not built upon?” We have been referred to no case, and, after a diligent investigation, we have found none, in which the restrictive words were the same as here used. When by deed a grantor imposes a restriction upon the land, or any portion thereof, conveyed to the grantee, for the benefit of the land retained, or imposes such restriction upon the land retained for the benefit of that granted, such act is in derogation of the natural right which the owner of property has to use and enjoy his own as he sees fit, so long as it does not work such an injury to others as the law will take cognizance of.

Therefore, one' of the cardinal canons of construction when dealing with such covenants is to construe them strictly against the person in whose favor they are made, and liberally in favor of the freedom of the land. A violation of the covenant occurs only when there is a plain disregard of the limitation imposed by its express words. So-, also, when the words used are as logically susceptible of a construction which would not violate the covenant, as of one which would violate it, the rule is to construe it so as not to constitute a violation. Wood v. Stehrer, 119 Md. 149 , 86 A. 128 ; Saratoga Corp. v. Stables Co., 146 Md. 152, 158 , 128 A. 270 ; Meredith v. Danzer, 142 Md. 582 , 121 A. 245 ; Peabody Heights Co. v. Willson, 82 Md. 186 , 32 A. 386, 1077 ; Beetem v. Garrison, 129 Md. 665 , 99 A. 897 ; Bealmer v. Tippett, 145 Md. 569 , 125 A. 806 ; Sowers v. Church of the Holy Nativity, 149 Md. 434 , 131 A. 785, 788 ; Culp v. Firestone Co., 303 Pa. 257 , 154 A. 479 ; Downen v. Rayburn, 214 Ill. 342 , 73 N. E. 364 ; Bartell v. Senger, 160 Md. 685 , 155 A. 174 .

In Sowers v. Church of the Holy Nativity, supra, speaking through Judge Parke, we said: “The use of the lots will not be further incumbered, and their commercial utility and value affected, by raising, through unwarranted implication, ¹⁸⁸ restrictions ■which, it is the sound policy of the law to require to be plainly and unmistakably declared through the language of the document, when considered in connection with the circumstances