Rauffus v. Cleveland , 1923 Ohio Misc. LEXIS 1928 ( 1923 )

WASHBURN, J.

Epitomized Opinion

This was an action brought by Rauffus and others to quiet title and remove restrictions from said land, which the City claimed the right to enforce. The owners of-a large acreage of land desired the city to construct and maintain a boulevard through said land, which the city agreed to do under certain conditions. To effect this understanding the owners, through a trustee, conveyed a 130 foot strip of land to the city. Among other things, the deed provided that: “By the acceptance of this land the City of Cleveland becomes obligated to open and improve said boulevard at its own expense.” In addition, the deed conferred upon the city the right to prevent the infraction of any restrictions or covel nants contained therein. One of these restrictions provided: “That no flats . . ; shall be erected or suffered to remain upon any of said lands adjacent to or fronting on said boulevard; that rio building . . . now or hereafter erected . . : . within 100 feet of said boulevard shall be used for . . . any mercantile . . . purposes.” The plaintiff’s land was not adjacent to the boulevard; but was within the hundred feet area. As the plain; tiff wanted to engage in a mercantile business, he: brought suit to remove this restriction. As the-lower court held for the city, plaintiff appealed.j Plaintiff claimed that the property in question was. not adjacent to the boulevard, and also claimed that! the restriction was unreasonable and appressive.' Held:

1. Although the property in question was not adjacent to the boulevard, the city and the grantors undoubtedly intended to include all land within 100 feet from the boulevard, and as the land in question was within that area, the restriction applies even, against successors of the original owner.

2. The restriction was not unreasonable and oppressive when one considers the benefit derived by the abutting owners.

3. A court of equity will not interfere with a restrictive covenant which is .reasonable when made, unless the evidence shows that a state of things has arisen which the parties did not originally contemplate.