Sowers v. Vestry of the Church of the Holy Nativity

Pabke, <T., delivered the opinion of the Court. The appellant, Walter E. Sowers, filed a bill of complaint to prevent the “Vestry of the Church of the Holy Nativity in the City of Baltimore,” a corporation, the appellee, from erecting a church whose building lines would be nearer to the street lines of both Garrison Avenue and Egerton Road than forty feet. A demurrer to the bill of complaint was sustained, and this appeal is taken from the decree dismissing the bill of complaint. The appellant is the owner of a parcel of land in the angle formed by the east line of Garrison Avenue and the south side of Egerton Road, Baltimore.

The appellant owned an improved adjoining lot immediately to the south of appellee’s property' and with a frontage on Garrison Avenue. The residence of the appellant and those of the other1 lot owners of the neighborhood were built forty feet back from the street lines. At the time of the institution of this litigation, the appellee was about to begin on its lot the construction of a church, whose front wall would be sixteen feet back of the street line of Garrison Avenue, with a front step extending almost to Garrison Avenue, and whose northern side wall. would be twenty-eight feet from the street line of Egerton Road. The right of the appellee to locate, within its property lines, its church, is unquestioned, save upon the single alleged ground that the appellee acquired its property subject to the restriction of not occupying with any building the portion of its lot within forty feet of the lines of either Garrison Avenue or Egerton Road.

The appellee and the appellant derive their respective titles from a common source, which ⁴³⁶ created the restrictions involved, and, a.s the appellee had notice, the inquiry is, primarily, if the erection of a church is within the meaning of the restrictions, and, secondarily, if so, has the appellant any equity. The decision depends upon the effect and scope of the restrictive covenants first set forth in the contract of sale, and later incorporated in the deed of John S. Gittings, trustee, to Harry E. Gilbert, dated 'September 14th, 1908, and duly recorded. This deed conveyed an unimproved tract of about forty-four acres, on which the purchaser was to lay out, grade, open and maintain highways, sidewalks and a sewerage system and to develop1, by division and sub-division of this tract into building lots, a residential property, whose desirability and permanent attractiveness to buyers as sites for homes would be assured through a series of restrictions and conditions, embodied in the deed in the form of twenty-four consecutive paragraphs lettered from a to x, both inclusive. The deed declared, with respect to the first thirteen (a to m) restrictions, that: “Any infraction of these conditions or failure to follow same fully will cause this sale to be null and void and vendor to be entitled to re-enter peacefully and without obstruction, vehdee agreeing to withdraw in the same manner.

These being conditions upon which sale is to be made to run with the land and any violation thereof may be enjoined and prohibited.” The final clause provided that “(4) The conditions and restrictions herein contained shall be embodied in each deed to the purchaser and made a condition thereof.” The grant of the tract was “to Harry E. Gilbert, his heirs and assigns, in fee simple, subject, however; to all the covenants, conditions and restrictions in said agreement contained and herein-before recited and on his part to be performed, all of which 'covenants, conditions and restrictions the said ⁴³⁷ Harry E. Gilbert for himself, his heirs, executors and assigns doth hereby covenant with the said John S. Gittings in his own right and as trustee, his heirs, successors and assigns and with the parties entitled in remainder subject to the life estate of the said John S. Gittings to faithfully perform, observe and comply with. And the said John S. Gittings, trustee as aforesaid, for himself, and his successors in the trust doth also hereby covenant that he will faithfully perform all the covenants in said agreement contained on Ms and their part to be performed.” While many of the restrictions and covenants of the deed are for the benefit and advantage of the vendor, yet the form and content of the deed make it clear that the vendor, in imposing the restrictions with respect to buildings and tbe use of the property to be sold for residential purposes, designed them not only for his own benefit and protection and that of his remaining land, but also for the common advantage and enjoyment of every one of the contemplated class of future purchasers of the several lots into which the tract conveyed was by agreement to be sub-divided. Among the restrictions which were created at the inception of the development project in furtherance of a general plan, and designed to make the lots marketable, the owners secure in the common and permanent enjoyment of a purely residential neighborhood of attractive and substantial dwellings, and free from the objectionable conditions prevalent in an unregulated community, were those which prohibited all shops, stores, factories, saloons, or business houses of any kind, except one drug store; all hospitals, asylums' and charitable institutions; all forms of private disposal of fecal matter or liquid waste; all cattle or swine, and nuisance or any use which might be noxious or dangerous to health, and the erection of any building until the design and plan, value and cost, and exterior color scheme had been approved. In addition, the minimum width of a lot, and the location of residences and of outbuildings, were regulated.

All these ⁴³⁸ restrictions were for the common advantage and continuing protection of the prospective householders. These restrictions were the basic conditions under which every purchase and sale, of a lot was made, and entered into and formed a part of the consideration for every grant of each lot into which the whole tract had been sub-divided. In addition, the bill of complaint averred, and the demurrer admitted, that the tract has heen improved by the lot holders in strict .accord with, and in reliance upon, the restrictive covenants of the deed mentioned. Under these circumstances, it cannot be doubted 'that the several purchasers of the parcels of this tract, their heirs, successors and assigns, may enforce in equity these restrictions among themselves for their own benefit in connection with the enjoyment of their respective properties.

Ringgold v. Denhardt, 136 Md. 136, 143, 144 ; Boyd v. Park Realty Corporation, 137 Md. 36, 40, 42 ; Newbold v. Peabody Heights Co., 70 Md. 493 ; Peabody Heights Co. v. Williams, 82 Md. 186 . The appellant is, however, entitled to no relief in equity unless he be correct in construing paragraph (b) of the deed to prevent the building of a church within forty feet of the street line of Garrison Avenue. The portion of the deed which directly relates to this subject, and which will require consideration, is - without punctuation, and is of the following form': “The development of said property to be subject to the following restrictions (a) The lots to be not less than sixty feet in width and only one dwelling to be built on each lot (No brick houses in rows at any time to be built upon this tract) (b) Building line of porch to be forty feet back of street line (c) No out buildings to be allowed nearer street or avenue on which lot fronts than one hundred feet, nor nearer to any other street or avenue than twenty-five feet (d) No fences to be erected other than hedges (e) No dwelling on Garrison Avenue or Liberty Heights Avenue or Calla-way Avenue to cost less than fifty-five, hundred dollars, nor less than forty-five hundred dollars, on any other ⁴³⁹ portion of the property (f) All designs and plans for dwellings and all other permitted buildings on lots parcel of said property, including exterior color schemes and values or cost of dwellings or buildings to he erected and the character and nationality and creed of prospective purchaser of lots or such questions