Meredith v. Danzer

Adkins, J., delivered the opinion of the Oourt.. Mrs. Mary Bitner D'anzer, one of the appellees, is. the daughter and devisee of the late J. Irvin Bitner, who in his lifetime laid out a tract of land, containing thirty acres, more or less, situated near’ to, and northeast of, the old corporate limits of the Oity of Hagerstown, into lots, with streets, alleys and pavements, -and had a plat thereof duly recorded under the name of Bitner’s Addition to Oak Hill. On Movember 11th, 1921, Mrs. D'anzer entered into two written contracts of sale with the appellant of two adjoining lots, numbers 34 and 35, respectively, of said. Bitner’s Addition, situated on the east side of Oak Hill Avenue, each fronting fifty feet thereon and running back therefrom one hundred and eighty feet to P'each Alley, subject to the following conditions: 1.

That no shop, store, factory, saloon, hospital, asylum or institution of kindred nature, shall be erected or maintained on said lots. 2. That said lots shall be occupied and used for residence purposes, only. 3. That no building or fence shall be erected or kept on any lot within 50' feet of the curb line of said Oak Hill Avenue. 4. That no dwelling is to be erected on said lots costing-less than $7,500. 'Subsequent to the filing of the original bill of complaint, lot Mo. 35 was conveyed to appellant by a deed in which the above mentioned conditions are incorporated.

The amended bill of complaint was filed February 3rd, 1922. It alleges, among other things, the facts above.set out; that prior to the date of said contracts of sale plaintiffs sold and conveyed ⁵⁷⁵ ■other lots on said avenue, as follows: Lots Hos. 9, 10, 11. 16, 17, 18, 19, 21, 36, 37, 38 and 39; that all of said lots were sold, subject to the conditions above set out; that- plaintiffs are still seised and possessed of lots Hos. 5, 6, 7, 8, 12, 1-1, 15, 20, 22, 23, 24-, 25, 26, 27, 28, 29, 30, 31, 32 and 33 on said 0-ak Hill Avenue, upon all of which they plan to impose the same conditions and restrictions as to buildings as set forth above; that all of the lots- in said addition are now within the corporate limits of the City of Hagerstown, and are in one of the most- beautiful and exclusive residential sections of said city; that the incorporation of the aforesaid conditions into- contracts entered into with the defendant and into the contracts with and deeds to other purchasers of lots on Oak Hill Avenue was part of a definite plan of development intended by plaintiffs to limit the character of building's to be erected on said lots to single dwelling houses, each of which single dwellings would cost at least $7,500, to the end that only high class single residences would he built on said street and that other lots belonging to plaintiffs, as well as the lots purchased from plaintiffs, might he thereby enhanced in value; that plaintiffs are advised that defendant intends to- erect and is now erecting on the aforesaid lot- Ho. 35 a large building, which is to be used as an apartment bouse containing six or eight apartments, at a cost of approximately $20,000, and that he has already begun the foundation for the same and is preparing to proceed at once with the completion of said building, and intends to erect on lot Ho. 34 a large building which is also to be used -as an apartment bouse, to contain six or eight apartments; that if the defendant is permitted to build said building, or any part thereof, on either of said lots, it will be an infringement on the rights of all other persons who have purchased lots from plaintiffs on Oak Hill Avenue, in this exclusive residential section, relying upon said restrictions and their observance, and that plaintiffs, who own a number of lots in the immediate neighborhood of lots numbers 34 and 35, as well as all other per ⁵⁷⁶ sons owning property there, will suffer irreparable loss and injury, and that the whole plan of plaintiffs for the development of said property would be defeated, and that the other lots of plaintiffs on said Oak Hill Avenue in said addition would thereby be greatly depreciated in value; that plaintiffs have strictly observed and intend to observe all the said conditions and restrictions with respect to the lots on Oak Hill Avenue owned by them as aforesaid and that with the exception of the building complained of no buildings have been erected on any lots on said avenue except residences, for a single family, each of which dwellings cost far in excess of $7,500; that there were other lots sold by plaintiffs to various persons situated in parts of said addition, other than Oak Hill Avenue, in the contracts and deeds foi which there are other and different conditions and restrictions than those contained in the contracts and deeds for the said lots situated on said avenue; and on which lots dwellings costing less than $7,500 could, under the terms of said contracts and deeds, be erected, and have been erected, thereon, and that all the said conditions and restrictions so imposed on other parts of Bitner’s Addition have been enforced by plaintiffs, but that the said lots on such other parts of Bitner’s Addition were and are not nearly so desirable or valuable as the lots situated on Oak Hill Avenue, and that it was and is the purpose and intention of plaintiffs to have said avenue an exclusive residential street with only high class and expensive dwellings erected thereon, and that they had and have a definite plan for the development of said avenue other and different from the development of the other parts of said addition, and for that reason placed the conditions and restrictions in the contracts with the defendant and in all other contracts and deeds for lots situated on said avenue. The prayer of the bill is for an injunction to restrain the defendant from constructing on said lots or any part thereof any apartment, or any dwelling to cost less than $7,500, and to require the defendant to remove the said apartment house ⁵⁷⁷ building or so much of it as he has erected upon said lots, and for general relief. The hill was demurred to and the demurrer was overruled, (lie defendant then answered, admitting some of the allegations of the hill.

Tie denies, however, that the conditions and restrictions in the deed of lots Eos. 88 and 39 are the same as those in his deed; also any knowledge of the alleged plan of plaintiffs to impose the alleged conditions and restrictions on the lots still held by them, and avers that they have not imposed and enforced similar conditions and restrictions on the other lots conveyed by them to various persons; he further denies that the incorporation of said conditions and restrictions in the1 several contracts with him and others was part of a definite plan of development in-1 ended to limit the character of buildings to be erected on said lots to single dwelling houses, each of which would cost $7,500, for the purpose of enhancing the value of the lots, or that to permit defendant to erect the proposed building would be an infringement on the rights of plaintiffs and other persons, owning lots on said avenue, or that the plans of plaintiffs would be thereby defeated; or that plaintiffs havf strictly observed and intend to observe all said condition* and restrictions, and points out different conditions and restrictions in certain deeds; avers that he never knew- or had any knowledge or notice of any general plan or scheme of development of any kind or character whatsoever for said addition or any part or parts thereof, save such general plan as is set forth on the recorded plat and that there is no other general plan for said addition or any part thereof; that recently. with the knowledge of plaintiffs, apartment houses have been erected on lots. 59 and 60 in close proximity to lots Eos, 31- and 35 ; and on lots 62, 64 and 65 duplex bouses have been erected with the knowledge of plaintiffs, and the plaintiffs have acquiesced in and never made any effort to prevent ine erection of said buildings; that prior to the filing of said ⁵⁷⁸ bill of complaint defendant had, to the knowledge of plaintiffs; expended large sums of money in the erection of the building complained of, and that for some time prior thereto-plaintiffs knew the character of building he intended to erect and made no- effort to prevent the erection thereof, and that they knew he purchased said lot or lots for the purpose and with the intention of erecting said building thereon and that he has not violated any of the conditions or restrictions in his contracts or deeds. The exhibits filed by defendant show that the words used in the conditions and restrictions as to character and co-st of residences in some o-f the deeds to lots on Oak Hill Avenue are not exactly the same as in deeds to- defendant. For instance, the restriction, as to lots 38 and 39, is to “a single residence or single dwelling house” to cost not less than $7,500; as to lots 1 and 2, the restriction was “one residence on any lot of 50 feet, and the minimum cost fixed was $2,500-; as to lot Ho. 3, the restriction was “to residential purposes only.” It will be noted, however, that the deeds to Lots 1, 2 and 3 were made back in the year 1905 by the father of Mrs. Danzer and not by the appellees; and it appears, from the agreed statement, that the houses on these lots are single residences and that each of them cost more than $7,500. The other deeds filed as exhibits are to lots not on Oak Hill Avenue.

In these the restrictions are materially different. For instance, as to lot Ho-. 60, the restriction is “that no single dwelling to- cost less than $3,000, or double dwelling to-cost less than $4,500 shall be erected on any lot of fifty feet”; the same as to lots 59, 62, 64 and 65. The agreed statement of facts is as follows: “It is hereby this 22nd day of May, A. D. 1922, agreed by the respective parties to the above entitled case that the following, together with the exhibits, heretofore filed by the respective parties, shall be taken and considered by the courts as the facts in said case. It is also further agreed, however, that the court is not to consider as facts anything in this agreed state ⁵⁷⁹ meni of facts that is in conflict with the facts as they may appear from the aforesaid certified exhibits heretofore filed by the respective parties in this cause, and that where the facts that appear from said certified exhibits are in conflict with this agreed statement of tacts, that the facts appearing from said certified exhibits shall control. “1.

That J. Irvin Bitner, late of Washington County, Maryland, deceased, in his lifetime subdivided and laid out ‘Bitner’s Addition to Oak Hill/ and had recorded the plat thereof, which has been heretofore filed in this case, marked Exhibit , with the conditions and restrictions as set out thereon. “2. That hy his last will and testament the said -T. Irwin Bitner devised the said tract of land to his daughter, Mary Bitner Danzer, one of the complainants. “3. That the most valuable and desirable lots in the said addition are those on Oak Hill Avenue, and the said Mary Bitner Danzer so considering, after she