Starmount Co. v. Greensboro Memorial Park, Inc. , 233 N.C. 613 ( 1951 )

65 S.E.2d 134 (1951) 233 N.C. 613

STARMOUNT CO.
v.
GREENSBORO MEMORIAL PARK, Inc.

No. 674.

Supreme Court of North Carolina.

May 23, 1951.

Brooks, McLendon, Brim & Holderness, Greensboro, for plaintiff, appellee.

Harry R. Stanley, Greensboro, for the defendant, appellant.

ERVIN, Justice.

This litigation does not involve the question whether the restrictions invoked by the plaintiff were inserted in the deed to the defendant's antecessors pursuant to a general plan for the development of Friendly Acres as a restricted community or neighborhood. Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918. The action is bottomed upon a quite different foundation. The plaintiff bases its prayer for relief upon individual and particular covenants constituting an express contract between it and the defendant's predecessors and appearing in the defendant's recorded chain of title.

The plaintiff's position is simply this: At the time of the original sale of the four acre tract, the plaintiff, as grantor, and the defendant's antecessors in title, as grantees, made an express contract imposing specific restrictions upon the use of the four acre tract for the benefit and convenience of the plaintiff in its disposition or use of the other portions of Friendly Acres retained by it. Such contract was embodied in covenants inserted in the deed conveying the four acre tract to the defendant's predecessors. Inasmuch as such deed constituted an essential link in the defendant's chain of title and appeared of record at the time it acquired the four acre tract, the defendant took the four acre tract with notice of the restrictive covenants. The restrictions are reasonable in character and duration, and do not clash with public policy. Since it took the four acre tract with notice of the restrictive stipulations, the defendant can not equitably refuse to perform them. Notwithstanding this, the defendant is about to breach the restrictions by appropriating the four acre tract to prohibited purposes which will diminish the enjoyment and impair the value of the substantial portions of Friendly Acres which the plaintiff still owns. As an original party to the restrictive covenants, the plaintiff is entitled to an injunction to restrain the threatened breach.

The plaintiff's position finds full support in authority and reason. Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18; Firth v. Marovich, 160 Cal. 257, 116 P. 729, Ann.Cas. 1912D, 1190; Whitney v. Union Railway Co., 11 Gray, Mass., 359, 71 Am.Dec. 715; Sanford v. Keer, 80 N.J.Eq. 240, 83 A. 225, 40 L.R.A.,N.S., 1090.

This being true, the plaintiff is entitled to an injunction restraining the defendant from using the four acre tract as a means of access to the commercial cemetery on the unrestricted forty acre tract if the restrictions contained in the deed of May 5, 1941, prohibit such use of the four acre tract.

The defendant contends with much earnestness and industry that the deed does not forbid its proposed use of the four acre tract. It asserts primarily that the instrument, properly construed, permits such use. It insists secondarily that the deed leaves the matter in doubt, and that the doubt must be resolved in its favor under the rule that restrictive covenants are to be strictly construed against the party seeking to enforce them. Edney v. Powers, 224 N.C. 441, 31 S.E.2d 372.

We do not deem either of these alternative contentions to be valid. A restriction of the enjoyment of property must be created in express terms, or by plain and unmistakable implication. Ivey v. Blythe, 193 N.C. 705, 138 S.E. 2. When the deed under scrutiny is read aright, it does these two things in express terms: First, it limits the use of the four acre tract to residential purposes, truck farming, and poultry raising; and, second, it prohibits the use of the four acre tract for any "business, manufacturing, or commercial purposes" other than truck farming and poultry raising.

While these explicit provisions necessarily permit any use of the four acre tract reasonably consistent with its use for residential purposes, truck farming, or poultry raising, they plainly and unmistakably imply that the four acre tract is not to be put into service as an incident to a forbidden business or commercial enterprise, even though such enterprise is situated on adjacent unrestricted land. As a consequence, the defendant can not use the four acre tract or any part of it as an entrance or driveway into the commercial cemetery located on the forty acre tract. Such use would violate the restrictions in question for it would be tantamount to dedicating the four acre tract to a prohibited business or commercial purpose. Our conclusion harmonizes with the decisions of the courts of other jurisdictions which have been confronted by the same problem. Mellitz v. Sunfield Co., 103 Conn. 177, 129 A. 228; Klapproth v. Grininger, 162 Minn. 488, 203 N.W. 418, 39 A.L.R. 1080; State ex rel. Stalzer v. Kennedy, 46 Ohio App. 1, 187 N.E. 640; Laughlin v. Wagner, 146 Tenn. 647, 244 S.W. 475.

Since the restrictions were imposed on the four acre tract for the benefit and convenience of the plaintiff in its disposition or use of the portions of Friendly Acres retained by it, their efficacy is not impaired in any degree by the stipulation that "nothing herein shall preclude the Starmount Company * * * from establishing business districts, or from establishing or allowing to be established hospitals, schools, hotels, or other institutions which in its opinion will be for the benefit of the community in which said property is located." Town of Stamford v. Vuono, 108 Conn. 359, 143 A. 245; Kuhn v. Saum, 316 Mo. 805, 291 S.W. 104; Beetchenow v. Arter, 45 R.I. 133, 119 A. 758.

Nevertheless, the injunction goes too far. It not only enjoins the defendant from using the four acre tract as an entrance or passageway to the cemetery, but it also restrains the defendant from using the four acre tract "for any other business or commercial purpose." The judgment is hereby modified so as to permit the defendant to use the four acre tract for truck farming and poultry raising. As thus modified, it is affirmed.

Modified and affirmed.