Trunck v. Hack's Point Community Ass'n

Henderson, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Cecil County, in equity, directing the appellants to remove part of a concrete porch, carport and overhanging structure attached to their dwelling house, to the extent that these structures extended beyond the set-back line in violation of a restrictive covenant. The covenant was “That no building or any part thereof shall be erected or placed on said lot within thirty-five (35) feet of Hack’s Point Road * * *.” It was contained in the ¹⁹⁵ original deed from Miller-Nelson, Incorporated to Dorothy V. Reburn, on March 5, 1943, and entered into by the grantee for herself, her heirs and assigns. This conveyance was of lots 27 and 28 “on the plat of the sub-division of the property * * * known as Hack’s Point Beach,” recorded in the land records.

The deed dated July 8, 1949, from Miss Reburn to the appellants, was of lot 27, as shown on the recorded plat, and was expressly subject to the conditions and restrictions contained in the deed of March 5, 1943. The same restriction was contained in the deeds to all the lots on Hack’s Point Road. In the case of lots fronting on other streets in the sub-division the set-back was 15 feet, all in accordance with a general plan. It was shown that the dwelling house in question had been erected in 1927 by the Miller-Nelson Company, which had developed Hack’s Point Beach.

The development comprises 276 lots, of which 182 are now occupied by dwellings. Mr. Miller, one of the developers, testified that all of the houses they erected, including the house in question, complied with the set-back restrictions. At the time they built the houses on lots 26, 27 and 28, the surveyor’s markers were in place. In 1951 the appellants, over the protest of the appellee and neighboring owners, erected a porch and carport extending about 7 feet over the line.

The appellants offered evidence of a surveyor that the houses on lots 26 and 28 also extended over the line, but the Chancellor found this was not the fact. He pointed out that the witness did not make a plat of his survey or locate the corner markers,. He had been employed to locate the division lines, and his location of the building line was “done for curiosity’s sake.” The markers he located were farther to the west where the road curved. He did not know there was a 35 foot set-back at. that time.