Ringgold v. Denhardt

Boyd, C. J., delivered the opinion of the Court. The appellant filed a bill to enjoin the appellees from erecting a private garage upon the property conveyed by Louisa A. Ringgold to Elizabeth M. Denhardt and by the latter to Gertrude Erck, in what was formerly in Baltimore County, but is now in the city. The lower Court granted a preliminary injunction, but subsequently passed a decree diss solving it and dismissing the bill. From that decree this appeal was taken.

Mrs. Ringgold owned what was known as “Spring Hill,” consisting of about thirteen and one-half acres of land which bounded on the Old York Road and Arlington Avenue. Some years ago (at one place in the record it was said to be fourteen years, and at another seventeen), through her son, the appellant, she had most of it laid out into- lots and streets, one street running northerly and southerly being called Rose Avenue, another running easterly and westerly, called Spring Hill Terrace, and still another partly open to the east of Rose Avenue. A plat was made which was not placed on record, but was offered in evidence. Thirty houses were built on lots by Mrs. Ringgold, eighteen of which were sold to various parties and twelve are still owned by the appellant, ¹³⁸ to whom the property was either conveyed or devised by his mother.

In answer to the question, “Did you acquire any title to the lots yourself on which these houses were built or any of them?” he replied, “Oh, yes; from time to time the houses and lots were deeded to me.” The part of the Spring Hill property which Mrs. Ringgold still owned at her death she devised to him. He owns a number of unimproved lots, ground rents on some improved lots and a parcel of ground having, according to the plat, a frontage of 550 feet on Spring Hill Terrace, with a depth of 200 feet, bounded on the west by Rose Avenue and on the east by the other street on the plat. On that are the dwellings of the appellant and some outbuildings. The deeds for all of the property sold, excepting what was conveyed to the Most Reverend James Cardinal Gibbons, Roman Catholic Archbishop of Baltimore, contained conditions and covenants similar1 to this one, dated November 30, 1904, from Louisa A. Ringgold to Elizabeth M. Denhardt, one of the appellees.

That deed describes the property as bounding on the south side of Arlington Avenue 55 feet I inches and calls for a street to be laid out, which is Rose Avenue, and runs with that 156 feet and 3 inches. It was upon that lot that the garage was proposed to he built, facing towards Rose Avenue. After describing the lot by courses and distances, the deed continues: “Being part of the same lot of ground described in a deed dated the 18th day of March, 1863, * * * to the said Louisa A. Ringgold, and with a view of maintaining the present high standard of the surrounding ground of which the foregoing lot is a part, it is agreed that this deed is made upon the following conditions and covenants.” As only the first, second and fourth are material, we will omit the others. They are as follows: “I. That no other building is to be made, erected, placed or put upon or on the aforesaid lot other than ¹³⁹ that now erected, this condition to include and embrace all stables, chicken or pigeon coops, pigsties, privies, or any outbuildings of whatsoever description.

II

That no fence other than an open wire fence or a hedge not higher than three feet shall be erected on said lot * * * IY. That the house on said lot now erected shall be used only as a dwelling house, and the same shall not be given, sold, rented or subleased to a negro or person of African or Mongolian descent.” The one directly involved in this case is the first, but the fourth shows that, in speaking in the first of the building “now erected,” the dwelling house on the lot was meant. As the garage about to be erected was not a dwelling house, there would seem to be no doubt about it being embraced in the first restriction. “No building other than that now erected” would have been sufficient, but it says what the condition is to include and embrace; namely, “all stables, chicken or pigeon coops, pigsties, privies, or any outbuildings of whatsoever description." It would be difficult to use more comprehensive language for the purpose of prohibiting the erection of any building not then on the lot. A garage is a building “other than that now erected,” and it is an outbuilding of some description.

Without quoting from them, the following authorities are sufficient to show that a garage would be included in this restriction, and that a Court of Equity would be authorized to give relief by injunction against the erection of one, if the complainant was entitled to the benefit of the restriction. 2 R. C. L. 1209; Riverbank Improvement Co. v. Bancroft, 209 Mass. 217 , 95 N. E. 216 , Ann. Cas. 1912 B, 450, and note; 34 L. R. A. (N. S.) 730, and note; Berry, Restrictions on the Use of Real Property, 141-2, Sec. 99; Hepburn v. Long, 146 N. Y. App. Div. 527, 131 N. Y. Supp. 154 (1911); Soyles v. Hall, 210 Mass. 281 , 96 N. E. 712 , Ann. Cas. 1912 D, 475, and note under head of Garage on page 480. ¹⁴⁰ It, therefore, is clear that the learned Judge who decided the case below was right when he said: “I think this restriction is broad enough in its language to cover the garage,” but he dissolved the injunction on other grounds. There can be no doubt about Mrs. Erck having notice of the restrictions, as the deed to Mrs. Denhardt by Mrs. Ringgold is referred to and the property is conveyed to Mrs. Erck “subject to the restrictions and conditions in said deed recited.” Mm Denhardt reserved the right “to make sale or dispose of any or all of said property above described by deed or other' instruments of writing in any manner she may see fit as long as she lives and from and immediately after her death, if said property remains undisposed of, to said grantee, her heirs and assigns.” Both of them are made parties to the bill, as are the Morrow Brothers, who were contractors to erect the garage. As reflecting upon the scheme of development of the property (as he speaks of it) intended by Mrs. Ringgold and her agent, the plaintiff, we will quote some of his evidence on that subject: “Q¡.

And in this bill of complaint that you filed in this case you refer to a general scheme of development of the Springhill property? A. Yes. Q. What was the general scheme ? A. The idea was to have the rears of the property as attractive and as pretty as the front, and to have an unobstructed view through the rears and no alleyways; and no place to collect garbage or anything of that kind, and just with a four-foot hedge, so that people could look over the whole thing, and that was one of the great things about the development, the unobstructed view.

Q. As the houses were built there, was that the original idea of the development? When you decided to develop^ the property was that the original scheme? A. That was the original scheme and carried out in every instance.” He further testified that there had never been any departure from that scheme; that they (meaning his mother through him) built every house on the place and followed the general scheme outlined by him; that, as ¹⁴¹ shown above, they built thirty houses — eighteen of which, they had sold and he owned the remaining twelve; that the houses are uniform in their construction and are for the most part about twenty-eight feet front by thirty-five feet deep>, besides porches of ten feet; that only one building (the dwelling) is on each lot that is improved and all of the houses are north of Spring Hill Terrace, excepting those on the Catholic Church property, and those on the plaintiff’s home place, which includes more than half of the development south of Spring Hill Terrace, and is not laid out into lots. The latter is higher' than Spring Hill Terrace.

The lota average about fifty feet front and about one hundred and fifty feet deep. According to the plat there are also four lots south of Spring Hill Terrace to the west of Eose Avenue and four to the east of the street not named, on which no houses have been erected. The houses are all frame, and cost from $2,000 to $3,000 each. The leading case in this State on the general subject is Thruston v. Minke, 32 Md. 487 .

There, a lease for the term of ninety-nine years was made, by one part-owner of a hotel property to the other owner, of an adjoining unimproved lot, with certain restrictions as to the building to be erected on the demised premises, reserved for the benefit of the hotel property. It was held that it was not a covenant running with the land demised, but the effect of the condition was to create a right or interest in the nature of an incorporeal hereditament or easement, appurtenant to the hotel property, and arising out of the land demised, and that the lessor was entitled to the benefit of the condition in the lease, which did not pass, to his assignee of the reversion, as was contended by the defendant. The cases of Whitney v. Union R. Co., 11 Gray, 359 , and Clark v. Martin, 49 Pa. 289 , were referred to at length, and relied on. In Halle v. Newbold, 69 Md. 265 , the grantors imposed a restriction in the nature of a servitude or easement upon the land they retained.

In Newbold v. Peabody Heights Co., 70 Md. 493 , Judge Alvey ¹⁴² said, in speaking of Thruston v. Minke and Halle v. Newbold, that “in both of those cases the general principle of equity was acted on and fully adopted, that a, restrictive covenant entered into between a vendor and vendee, or lessor and lessee, in respect to the manner of using the property, would be enforced by a court of equity, as against the vendee or lessee, and his assigns, without respect-to the question as to whether the covenant did or did not, in a legal sense, run with the land. The relief may be furnished either by way of injunction, or upon application for specific performance, according to the circumstances of the case calling for the exercise of equitable jurisdiction.” It must not be overlooked, however, that Thruston v. Minke was between the original parties and in Halle v. Newbold the covenant was by express words for the heirs and assigns. After quoting at length from the opinion of Lord Chancellor Cottenham in Tulk v. Moxhay, 2 Phill. 774 (in which the instrument expressly included the assigns), he said: “The principle thus clearly stated has been applied in a great variety of cases of restrictive covenants and agreements, both in the English and American courts; and they all concur in holding that whoever purchases land upon which a former vendor or lessor has imposed an easement, charge, or restriction in the manner of its use, such as would be enforced by a court of equity ás against his vendee or lesseei, the party purchasing the land with notice will take it subject to such easement, charge or restriction, however created.” That is repeated in Wood v. Stehrer, 119 Md. 143 , and after citing Peabody Heights Co. v. Willson, 82 Md. 186 ; Summers v. Beeler, 90 Md. 474 ; Safe Deposit Co. v. Flaherty, 91 Md. 489 ; Dawson v. West. Md. R. R. Co., 107 Md. 70 , and Foreman v. Sadler's Executors, 114 Md. 574 , it was said: “It will be seen from an examination of those cases that a vendor may impose restrictions on lands he sells for the benefit of his remaining land in such manner as may be binding on the vendee and his assigns, although they are ¹⁴³ not what are strictly covenants running with the land, and the vendor may likewise impose burdens upon his remaining land for the benefit of that sold so that his heirs and assigns may be bound by the restrictions.” It is also said in that case that “There are a number of eases in this State which determine that if it is intended to bind heirs and assigns by such instrument it must be so stated, or at least there must be enough in the instrument to show that such was the intention”—citing Halle v. Newbold, supra, Ross v. McGee, 98 Md. 389 , Dawson v. West.

Md. R. R. Co., 107 Md. 70 , Md. & Pa. R. R Co. v. Silver, 110 Md. 510 . In Ross v. McGee , Judge Eowler repeated the quotation from Whitney v. Union R. Co. made in Halle v. Newbold, that “when it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of the other land owned by the grantor, and originally forming with the land conveyed one parcel, such right will be deemed appurtenant to the land of the grantor and binding on that conveyed to the grantee, and the right and burden thus created will respectively pass to and be binding on all subsequent grantees of the respective lots of land.” That was referred to with approval in Washburn on Easements (4th Ed.) 115, 116. In Summers v. Beeler , Judge Pearce quoted with approval from Nottingham Brick & Tile Co. v. Butler, 15 Q. B. Div. 268, that “where the same vendor, selling to several persons plots of land, parts of a larger property, exacts from each of them covenants imposing restrictions upon the use of the plots sold, without putting himself under any corresponding obligation, it is a question of fact whether the restrictions are merely matters of agreement between the vendor himself and his vendees, imposed for his own benefit and protection, or are meant by him, and are understood by the buyers, to be for the common advantage of the several purchasers.

If the re ¹⁴⁴ strictive covenants are simply for the benefit of the