Millison v. Fruchtman

Henderson, J., delivered the opinion of the Court. On March 2, 1957, the appellants filed a bill of complaint in the Circuit Court for St. Mary’s County to restrain a breach of a restrictive covenant and an alleged nuisance. The Chancellor sustained a demurrer to the bill, with leave to amend and amplify the allegation as to nuisance, and, the appellants declining to amend, dismissed the bill. The appeal raises only the question as to the restrictive covenant.

The bill alleges that on December 20, 1947, the appellants entered into a written agreement with Jack Fruchtman for the sale of a lot of ground on the west side of Coral Place in Lexington Park. The agreement was recorded in the land records and contained a clause reading as follows: “It is further agreed that the land herein conveyed shall be used for a theater, only, to face the west, and also for professional, business and commercial offices. A Store will also be permitted subject to the written approval of Hiram Millison.” Another clause provided for parking space sufficient to ac ⁵¹⁷ commodate 140 cars, in a “Community Parking Space” laid out by the appellants in the vicinity. The appellants covenanted that they would not permit the building of a theater on their remaining land, and the parties agreed that the agreement should bind their respective heirs and assigns.

On February 5, 1948, a deed was executed and recorded conveying the lot to Fruchtman, the appellee Dean and another party who no longer has an interest in the property. The deed conveyed the lot in fee simple and conveyed certain easements in the adjacent roads and sidewalks and in the “Community Parking Space” as set forth in the recorded contract of sale, “subject to the terms and conditions therein set forth relating to Community Parking Space”. It contained a covenant “that the land herein conveyed shall not be used for the purpose of engaging in, operating, conducting, or managing the business of a bus depot, dairy bar, liquor bar, package liquor store, mechanical vending device or drug store; provided, however, that this covenant shall terminate automatically on the 4th day of September, 1951, unless terminated sooner by the Grantors.” The grantors covenanted that they would not build, or permit the building of, a theater on their lands within the area. These covenants were declared to be binding on heirs and assigns.

The bill alleges that the appellees are violating the covenant contained in the contract of sale, by using the premises conveyed for the operation of a hotel, rental of living quarters to transients, rental of automobiles and hiring of taxicabs, to the irreparable damage of the appellants who own commercial properties north and south of the premises. The