Middleton Realty Co. v. Roland Park Civic League, Inc.

⁸⁹ Collins, J., delivered the opinion of the Court. This is an appeal from a decree granting a permanent injunction against the violation of a restrictive clause in a deed. The appellees and plaintiffs in this case are: Roland Park Civic League, Inc. (Civic League) ; The Roland Park Roads and Maintenance Corporation (Maintenance Corporation) ; and The Alvirn Apartments Corporation (Alvirn Apartments). The Civic League, a Maryland corporation, is composed of members or property owners and tax payers living in Roland Park.

This corporation owns 75% of the stock of the Maintenance Corporation, which is also a corporation of the State of Maryland. The Roland Park Company of Baltimore City (Roland Park Company) by deed on July 26, 1909, granted to the Maintenance Corporation all its rights and privileges in regard to the enforcement of the restrictive covenants in Plats 1, 2 and 3 of Roland Park. The Alvirn Apartments owns the property north of the lot now in question before this Court. Bernard I. Hendler, who owned 40% of the stock of the Roland Park Shopping Center was also admitted by Order of Court as a party plaintiff.

The appellants and defendants are The Middleton Realty Company, the owner of the lot involved in this case; The Franklin Realty and Finance Company, which manages the property involved under contract with The Middleton Realty Company; and David W. Chertkof, agent of The Middleton Realty Company and a 60% stock holder in the Roland Park Shopping Center which is directly south of the lot here in question. On March 6, 1896, the Roland Park Company granted and conveyed unto the Lake Roland Elevated Railway Company, its successors and assigns, the lot here involved, “and described as the north 43 feet of lot numbered 4 in block number 21 as shown on plat number 1 of Roland Park.” The deed further provides: “To have and to hold the above granted property unto the ⁹⁰ said Lake Roland Elevated Railway Company, its successors and assigns, forever in fee simple, subject however to the following covenants and agreements which are hereby entered into by the said party of the second part, for itself, its successors and assigns, with the said Roland Park Company of Baltimore City, as part of the consideration for this deed. (1) That no store, factory, saloon, hospital, asylum, or institution of like or kindred nature, and no charitable institution shall be erected or maintained on the premises hereby conveyed, but that said premises shall be occupied and used by said party of the second part, its successors and assigns, including all tenants for railway or residence purposes only, and not otherwise.” Paragraph 2 in the restrictions requires that no residence shall be erected costing' less than $3,000.00; Paragraphs 3 and 4 refer to set-backs; Paragraph 5 refers to a prohibition against cesspools; Paragraph 6 provides for the enforcement of the covenants and reads in part: “That if any building * * * be erected * * * in violation of any of the covenants * * * the said party of the second part, its successors or assigns, shall, upon a written notification by the said Roland Park Company, its successors or assigns, * * * at once tear down and remove such buildings” and that, if such building is not so torn down and removed, “the said Roland Park Company of Baltimore City, its successors or assigns, and its or their servants or agents, shall at all times have the right to enter upon the land hereby conveyed and tear down and remove any building or structure” erected or maintained on said land in violation of the said covenants or any of them. This paragraph further provides: “It is distinctly covenanted and agreed between the parties hereto that each and all of said covenants and agreements shall run with and bind the lot or lots hereby conveyed and shall be observed and kept by each and all persons owning or occupying the same.” (Italics supplied).

Paragraph 7 of the restrictions provides that the party of the second part, its ⁹¹ successors and assigns, shall be liable for a proportionate part of the charges in keeping streets lighted and repaired and maintaining the sewerage system. Before this basic deed was made in 1896, there were no restrictions of any kind as to the use of any of the lots in Block 21, this being the first conveyance from the original company in this block. Block 21 is composed of ten lots. At its southern end, Lots 1 to 3 consist of a shopping center which contains several shops with apartments built above them.

At the southwest corner of Lots 1, 2 and 3 is a small portion on which the city of Baltimore has constructed a fire engine house. Lot 4 is the lot now before us in this case, except for the southernmost seven feet thereof. Lots 5, 6 and a part of Lot 7 are now the property of the Alvirn Apartments and the restrictions confine their use to residential purposes except for the basement of the Upland Apartments built on this property which may be used for commercial purposes. There were no restrictions on these lots until bought by the Alvirn Apartments in 1925.

A building was constructed there after 1900 and prior to 1915 and was used as an office building for the Roland Park Company. About 1915 this building was changed into the Upland Apartments, but the offices of the Roland Park Company still remained in the basement. After 1932 the offices of the Roland Park Company were moved. Since 1938 it has been used entirely for residential purposes.

A part of Lot 7 and Lot 8 and a part of Lot 9 are to the north of the Alvirn Apartments, and stores are not prohibited thereon. These lots are now and have been for many years occupied as a residence. The remaining part of Lot 9 and a part of Lot 10 have the same restrictions as Lots 8 and 9. Residences are actually constructed upon these lots and they have been used for residential purposes since 1912.

North of the lots in Block 21 are Lots 8 and 9 of Plat 3 which have been used for many years for residential purposes. The testimony does not show what the restrictions now are relating to those ⁹² lots. To the west of the lot involved in this case is Plat 2 of Roland Park. Immediately to the west is a large lot formerly occupied as a car barn by the United Railways.

About two years ago this car barn was torn down and the Park Lynn Apartment house, containing thirty to forty apartments and a garage for the use of the apartment dwellers, were erected thereon. To the west of the Park Lynn Apartments is another large apartment house known as the Roland Park Apartments. The Roland Park Apartments lot was originally occupied by Roland Park Stables and is referred to in the case of Saratoga Building & Loan Corp. v. Roland Park Stables Company, 146 Md. 152 , 128 A. 270 . On the Roland Park Apartments lot are also a garage and repair shop which have been there since 1925.

Since 1931 Lots 1 to 10 of Block 21 of Plat 1, the Park Lynn Apartment lots and the Roland Park Apartments have been zoned as “First Commercial”. The two lots in Plat 3 to the north of Block 21 are zoned “Residential”. The case of Saratoga Building & Loan Corp. v. Roland Park Stables Company, supra, is not in point here. It was stipulated and agreed as follows: “All restrictions except the covenant or restriction imposing maintenance charges contained in conveyances of property as shown on Plat 2 of Roland Park expired in 1925.

A number of property owners in Plat 2 renewed the expired restrictions, but these renewed restrictions have now expired. All restrictions except the covenant or restriction imposing maintenance charges, in Plat 3 expired on January 1, 1930. A number of property owners in Plat 3 renewed the expired restrictions. These renewed restrictions will expire on January 1, 1955.

All restrictions except the covenant or restriction imposing maintenance charges, in' Plat 4A and 5 will expire on January 1, 1960. All restrictions except the covenant or restriction imposing maintenance charges, in Plat 6 expired on January 1, 1950. The restrictions in Plat 1 are perpetual.” ⁹³ The situation therefore in Block 21 of Plat 1 is that all of that block can now be used for commercial purposes except Lot 4 here in question and Lots 5 and 6 and a part of Lot 7. However, Lots 5 and 6 and a part of Lot 7 can be changed to commercial purposes by agreement of the then present owner and the Maintenance Corporation and at the present time a part of Lots 5, 6 and 7 can be used for commercial purposes although now used residentially.

To the north of Block 21 are two lots now used for residential purposes, but the record does not show whether there were any restrictions against the use of these lots for commercial purposes. It is stipulated and agreed in this case: “Since 1897-1898 and continually thereafter until 1947-1948, the property in quo as well as the lot to the west (now an apartment house and garage) were used as a street railway waiting station, street car tracks and a large car barn. Such uses were abandoned by the Baltimore Transit Company, following which the lot in quo was conveyed to the Middleton