Osborne v. Talbot

Markell, J., delivered the opinion of the Court. This is an appeal, by a chiropractor and his wife, from a decree making perpetual an injunction granted against them upon the filing of the bill and perpetually enjoining them “from conducting or engaging in any business or profession in the buildings [sic] erected on lot No. 11 Section A of Northern Heights Addition to Hagerstown, but the improvements on said lot shall be occupied and used for residence purposes only”. By a deed from Hagerstown Mutual Realty Company, dated October 25, 1910 two parcels of land, which were part of Northern Heights Addition, comprising lots Nos. 11 and 12, each fronting 100 feet, and an adjoining parcel, to be used only for park purposes, fronting 39 feet on the Terrace, were conveyed to Harry E. Bester, for $2,000, “subject to the following conditions, which the grantee by the acceptance of this deed hereby covenants to keep, Condition No. 1. That no shop, store, factory, saloon or business house of any kind, no hospital, asylum and no institution of any kindred nature and no charitable institution shall be erected or maintained on the premises hereby conveyed, but the said premises shall be occupied and used for residence purposes only and not otherwise. 2.

That there shall not at any time be more than two residences on any lot of 50 feet. 3. That no residence or dwelling house shall be erected on any lot of 50 feet costing less than $2,500.00. 4. That no residence or dwelling house shall be erected or kept on said land wholly [sic] or within 50 feet of the curb line of Terrace ¹⁰⁸ Street, said condition not to apply to verandas or porches. * * * For a more exact description of the above parcels, refer to the plat known as Northern Heights Addition, which has been recorded among the Plat Records of Washington County * * *”. A plat, certified to be “a true copy of section A of Northern Heights Addition as shown on the Washington County Plat Record No. 2, Folio 101, the same having been made * * * in December, 1911” shows 19 numbered lots, including Nos. 11 and 12, fronting, most of them 100 feet, all more than 50 feet, No. 11, 80 feet to a 20 foot alley, on the east or the west side of the Terrace, and 18 unnumbered lots, evidently fronting, most of them 50 feet each, on the west side of Oak Hill Avenue, the next street east of and parallel to the Terrace.

On the plat the northernmost 264.6 feet on Oak Hill Avenue, most of it behind and abutting on lots Nos. 11 and 12, the end of the 20 fóot alley and the park area, is not divided into lots but is marked “H. E. Bester”. This property had been conveyed to Bester, for $2,001, by a deed dated October 8, 1907 from J. Sumner Draper and wife, as comprising, among other lots, lots Nos. 106, 107, 108, 109, 110 and 111 on Oak Hill Avenue in Fairmount Park Addition, with reference to a recorded plat. The Draper deéd contains no use restrictions except (1) a 20 foot setback from the sidewalk, (2) a minimum cost of $2,000 for any house, and (4) prohibition of sale of intoxicating liquors. By a deed dated April, 1937, the trustee of the Bester estate conveyed to Clay K. Brandenburg and wife, for $10,000, a parcel of land extending 264.6 feet on the west side of Oak Hill Avenue and 239.22 feet on the east side of the Terrace, and comprising lots Nos. 11 and 12, the 20 foot alley and the park area and the Oak Hill Avenue lots conveyed by Draper, “subject to all easements, covenants and restrictions which are set forth in the aforementioned deeds [from Hagerstown Mutual Realty Company and Draper].” By a deed dated October 8, 1942, Brandenburg conveyed to defendants ¹⁰⁹ the southernmost 60 foot frontage on Oak Hill Avenue, 180 feet deep westward, of the land conveyed by the 1937 deed, “subject to all the easements covenants and restrictions referred to in the [1937] deed * * *.” Defendants, with constructive and presumably actual notice of the applicable restrictive covenants, have contracted to buy from Brandenburg lot No. 11 and have erected on it, and now occupy, a house that has cost them about $40,000.

Lot No. 12 was conveyed by Brandenburg to plaintiffs Ridenour, part in 1946, part in 1949. By deeds, of various dates from 1921 to 1949, from various grantors (other than Hagerstown Mutual Realty Company), other plaintiffs respectively acquired lots Nos. 6, 7, 8, 9, 10, 27, 28, 30 and 31, each fronting on the Terrace, in Section A of Northern Heights Addition. It is conceded that the Terrace is “one of the best residential sections in Hagerstown.” The bill alleges elliptically that [presumably the Realty Company] “caused said land [shown on the plat of Section A] to be restricted by the same covenants, restrictions and conditions, which are as follows:” [setting out conditions 1 to 8, inclusive, in the 1910 deed to Bester, inaccurately as to 2 and 3, viz., 2 as prohibiting more than one residence on any 100 foot lot, 3 as prohibiting any residence, on any 100 foot lot, costing less than $5,000]. It is admitted that condition 1, swpra, is contained in the deeds to “other lots” than Nos. 11 and 12, but it is not clear what other conditions are contained in such deeds, or whether condition 1 is contained in all of them.

No explanation has been given of the inaccurate allegation of conditions 2 and 3 in the bill. This inaccuracy, together with differences between the 1910 deed and the plat “made in December 1911”, and the ineptness of conditions 2 and 3 in the deed as compared with those set out in the bill, suggest that the 1910 deed may have been the beginning of changes embodied in the 1911 plat, and that the conditions recited in the bill may have been contained in later deeds and should ¹¹⁰ have been contained, but were by error omitted, in the 1910 deed. In any event it is manifest (though perhaps not material) that the fact that the Terrace is “one of the best residential sections of Hagerstown” is not the result of the restrictive covenants in the 1910 deed. Subject to the requirement of a 50 foot setback, an apartment house of any height, or apparently four row houses each 25 feet wide, could be built on one 100 foot lot.

The bill alleges that defendant “plans to engage in the business of practicing his profession as a chiropractor in the basement of the building” on lot No. 11 and “has informed” one of plaintiffs “that he intends to occupy the building * * * as a residence and also conduct his office and practice his profession as a chiropractor in said building”. The answer denies that defendant “has expressed himself as intending to conduct his office and professional practice exclusively in his residence but avers that he proposes only an incidental use of the said residence for professional office purposes, such use being supplemental, beyond usual office hours, to his regular office which is maintained in another location.” The answer denies that defendant’s intentions are in violation of any covenants or conditions restricting the use of his property or of the general plan or scheme of development of lots in Section A. The issues presented by the bill and the answer as to defendant’s intentions have since been broadened. Defendant in his testimony in effect declined to confine his intentions for the future within the scope of his answer. He admitted he had expressed a desire to save office rent in the future, “as time might crawl up” on him and he might conduct a smaller practice entirely at his residence.

But he refused to commit himself to any plans for the near or distant future. He also testified that he intends to perform at his residence his duties as Secretary of the Board of Chiropractic Examiners. He was appointed to that office in 1948. On the other hand, the lower court by its decree in effect refused to recognize any distinction ¹¹¹ between practice of a profession wholly at or from one’s residence and “incidental” practice to a limited extent in special circumstances, but construed the covenant that the premises “shall be occupied and used for residence purposes only and not otherwise” as prohibiting “conducting or engaging in any business or profession” on the premises.

The court granted an injunction in the broadest terms, in the words of the covenant plus this implied prohibition, without any definition or limitation of “use for residence purposes only” or “engaging in any business or profession.” We cannot properly decide the case before us without considering the relation of our decision to matters not directly before us. A chiropractor is not a physician; his profession or calling is not the practice of medicine. Crider v. Cullen, 191 Md. 723 , 63 A. 2d 618 . Chiropractors, and presumably their patients, are much less numerous than physicians and their patients.

Conceivably an office on the Terrace might have an indirect advertising value to a chiropractor. In view of the difficulty of obtaining physicians at night, especially in rural or suburban neighborhoods, physicians might be more welcome than chiropractors in restricted residence neighborhoods. One of the plaintiffs, who has been a patient of defendant, says she thinks “we are fortunate when we can call a doctor at night and get some medicine.” However, construction of a contract, like exercise of the police power, cannot be determined by a plebiscite of neighbors. Benner v. Tribbitt, 190 Md. 6, 20 , 57 A. 2d 346 .

If a majority of neighbors can prevent a chiropractor from practising in violation of a restrictive covenant, a minority of one can prevent a physician from so practising. Four of the plaintiffs are physicians and their respective wives; all testified. In its opinion the lower court says, “I am * * * of the opinion that the weight of authority supports the conclusion that property which is restricted exclusively for residential purposes cannot be used as contemplated by Dr. Osborne. Since this sub-division ¹¹² was laid out there has not been a single violation of the covenants in the deeds that it be used for residential purposes only.

The Terrace is certainly one of the finest, if not the finest residential street in the City of Hagerstown. At least five physicians have had homes on this street and two of them testified in this case. None have ever attempted to practice their profession in the home and except in rare instances of an emergency nature, have gone to their offices in order to treat patients when that became necessary at night time or at other than regular office hours. There are many locations in Hagerstown where Dr. Osborne can do without any question being raised what he seeks to do in this highly restricted residence area.

In fact many professional people in this community maintain their offices in their homes but I do not think that this is done in the face of restrictions such as here presented. * * * The business or professional use to which he now seeks to subject the property is purely one of degree and it might fairly be said that once established, the regulation of the use from a practical point of view would be uncontrollable”. These statements, especially in connection with the testimony, we think, reflect a construction of the covenants which is materially narrower than the terms of the decree. The testimony shows, as the court says, that “in rare instances of an emergency nature” Dr. Bell and Dr. Wells have received and treated patients at their residences. These witnesses use “emergency” in much the same sense as defendant uses “incidental”, but the emergencies apparently have been more rare (several times a year) and more actively discouraged than defendant’s incidental use (once or twice a week) of his former residence on Oak Hill Avenue.

Furthermore, Dr. Bell and Dr. Wells each receive at their residences many professional calls by telephone at night, on Sundays and holidays and also during the day, and by telephone give advice and sometimes prescribe medicine. Dr. Bell has an extension line from his office to his residence and the same telephone number for both office and residence. ¹¹³ Mrs. Bell answers calls at the house when the office girl is out. Dr. Wells has a separate telephone from his office to his residence and always during meal hours gets calls over the telephone. Dr. Bell says he receives at his residence possibly from 10 to 100 telephone calls a day.

The opinion seems to recognize, and the testimony demonstrates, that there are exceptions to the statement that these physicians do not “practice their profession in the home”. The decree, however, makes no exceptions at all. The opinion seems (but perhaps was not intended) to imply that physicians who reside on The Terrace “have gone to their offices * * * to treat patients * * * at night” in order to avoid violating these covenants. Such an implication is not warranted.

Physicians prefer to go to their