Van Poole v. Messer , 25 N.C. App. 203 ( 1975 )

212 S.E.2d 548 (1975) 25 N.C. App. 203

Edwin L. VAN POOLE et al.
v.
Violet D. MESSER and Ruth E. Dull.

No. 7419SC977.

Court of Appeals of North Carolina.

March 19, 1975.

Rutledge & Friday by Clinton S. Forbis, Jr., Kannapolis, for plaintiff appellees.

Larry G. Ford, Salisbury, for defendant appellants.

HEDRICK, Judge.

The three assignments of error brought forward and argued in defendants' brief all relate to the court's instructions to the jury.

First, defendants contend the court erred in not submitting an issue as to whether the restrictive covenant in question had become unenforceable by reason of substantial and radical changes in the character of the East Jackson Park Subdivision.

In Tull v. Doctors Building, Inc., 255 N.C. 23, 39, 120 S.E.2d 817, 828 (1961), we find the following pertinent statement:

"``No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement.'"

The only evidence in the record tending to show any changed conditions within the subdivision relating to the restrictive covenant is that one other trailer is used as a residence approximately 800 feet from plaintiff's property. Van Poole testified that this particular trailer was on another street and was not visible from his residence. While this evidence tends to show a violation of the restrictive covenant, we are of the opinion that it is not sufficient to show such a radical change as to defeat the purpose and object of the restrictive covenant and to require the submission of an issue to the jury on this point.

Furthermore, defendants neither objected to the issue which was submitted to the jury nor requested the court to submit an issue of substantial change in the character of the neighborhood, and, therefore, waived their right to have such issue passed upon by the jury. G.S. § 1A-1, Rule 49(c), Rules of Civil Procedure; Baker v. Construction Corp., 255 N.C. 302, 121 S.E.2d 731 (1961); Benson v. Insurance Co., 23 N.C. App. 481, 209 S.E.2d 362 (1974); Yandle v. Yandle, 17 N.C.App. 294, 193 S.E.2d 768 (1973); Brant v. Compton, 16 N.C.App. 184, 191 S.E.2d 383 (1972).

Defendants next contend the trial court erred in its instructions to the jury when it stated:

"Now, the burden of proof is on the defendants, members of the jury, to satisfy you by the evidence and by its greater weight, that the defendants have in fact waived their right to enforce this covenant or have acquiesced in the defendants' violation of it." [Emphasis Ours.]

Although the trial judge erred in using the word "defendants" rather than "plaintiffs" in the portion of the charge objected to, we are of the opinion that this error, obviously a lapsus linguae, did not mislead the jury and was therefore not prejudicial to defendants. The trial judge properly instructed the jury in several other portions of the charge that the plaintiffs were seeking to enforce restrictive covenant number six against the defendants and that the issue to be decided was whether the plaintiffs, not the defendants, were precluded from doing so either because they had waived their right to enforce the covenant or because they had acquiesced in defendants' violation of it.

Finally, defendants contend the court erred in not instructing the jury it would answer the issue in favor of the defendants if it found that the plaintiffs "silently acquiesced" in the violation of the restrictive covenant. We do not agree.

There is no evidence in this record that the plaintiffs silently acquiesced in the violation of the restriction. If the plaintiffs waived their right to enforce the covenant at all, they did so by expressly stating to defendants that they could place a trailer on the property.

We find no error prejudicial to the defendants in the trial in the superior court.

No Error.

MORRIS and PARKER, JJ., concur.