Dillon v. Gaker ( 1937 )

I concur in the conclusion that this is a chancery case and appealable on questions of law and fact to this court, but dissent from the conclusion reached by the court on the merits for the following reasons.

I agree with my associates that the meaning of the phrase "one residence," as used in the plaintiff's contract is a building constructed for the purpose of serving as a dwelling place of one family, and that a building constructed for the purpose of serving as the dwelling place of four distinct families, living separate and apart from one another, is outside of its meaning.

The ground of my dissent is that the defendant has no cause of action upon this covenant under the evidence shown by the record.

It is not sufficient to support an action by one lot owner against another to show that each has contracted with a common grantor. It is incumbent upon any such lot owner to go further and prove that there was a general plan to restrict the use of the property in the subdivision for the use and benefit of all grantees, and that at the time he and the defendant purchased their property they knew of that general plan and its purpose. If the evidence is not in his chain of title, he may prove the facts by evidence extraneous thereto. Mere knowledge that there are restrictive covenants running to the common grantor is not sufficient to satisfy the rule. There must be knowledge that the restrictions were intended to inure to the benefit of other grantees. This was so held in Kiley v. Hall, 96 Ohio St. 374,117 N.E. 359, L.R.A., 1918B, 961, the first paragraph of the syllabus of which is:

"The purchaser of a lot in an allotment whose deed contains restrictions as to the use of the lot is not chargeable from that fact alone with notice that like restrictions are contained in the deeds to other purchasers of lots in the allotment."

At page 382, the court said:

"Each purchaser, of course, knew that his grantor, Kyle, could enforce the observance of these restrictions, but we do not know upon what theory the covenant in his deed would advise him that he owed a similar duty to the other lot owners. So there is nothing on the recorded plat or in his deed that would charge plaintiff in error when he purchased his lot with notice of a general plan or with notice that the restrictions contained in his deed were for the benefit of the other lot owners."

In Adams v. Donovan, 97 Ohio St. 83, 119 N.E. 252, the court, at pages 84 and 85, says:

"Evidence that a lot owner in an allotment notified a proposed purchaser of a lot in the same allotment, that the use of the lot he proposed to purchase was restricted to single residence purposes only, does not sustain an allegation of the petition that the purchaser was notified before purchasing the lot of a general plan of uniform restrictions upon every lot in the entire allotment.

"Such evidence does not charge a purchaser with notice that like restrictions are contained in the deeds of other purchasers of lots in the allotment, or that such restrictions are for the benefit of the owners of the other lots therein. Kiley v. Hall,96 Ohio St. 374."

It is my judgment the evidence falls far short of proving a general uniform plan to restrict the use of this property. And I recall no evidence in the case at bar tending to prove that either the plaintiff or defendant purchased their lots with knowledge of a general uniform plan to restrict the use of the property in the subdivision, imposed for their benefit. The agreed statement certainly contains nothing whatever on this subject. If there should be some evidence, the doubt should be resolved in favor of the free use of the property. In Hunt v.Held, 90 Ohio St. 280, 107 N.E. 765, L.R.A., 1915D, 543, the court held as stated in the syllabus:

"1. Where the right to enforce a restriction contained in the conveyance as to the use of the property conveyed is doubtful all doubts should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee."

The failure of proof of this material fact makes it impossible, in my opinion, for the court to make any declaration as to the rights of these parties. Therefore, the action should be dismissed.