Stoddard v. Long ( 1924 )

BY THE COURT.

This action was brought in the Court of Appeals by Eleanor Stoddard- against Anna Long, to enjoin her from completing or constructing a building on her lot which adjoined the lot of Stoddard. It was claimed by Stod-dard that the attempted construction of a bungalow by Long, was in violation of restrictions in the original deeds executed by the J. A. Winters Co., who originally subdivided and laid out the land in the district. It was claimed by Stoddard that even though Long did not know of the restrictions, she was presumed to have had knowledge due to the fact that they were in the original deed and were on record. The restriction in question provided that no single house less than two stories shall be built, nor costing less than $25,000. When Long commenced building a bungalow, Stoddard obtained temporary relief pending this action for permanent injunction.

' Long contended that a number of other houses had been built in said district in violation of the restrictions, and without objections from any property owners. The Court of Appeals held:

1. The record shows that 59 houses in this territory have been built in violation of restrictions. It would be unjust and unequitable to enforce the restrictions in this case against Long.

2. While restrictions in deeds especially in residence districts are of very great importance, and will generally be enforced so far as reasonable and just, yet, we think there has been a general aequiesence in the violation of a restriction by other builders, the parties so acquiesing in the violations are not in a position to enforce it. Temporary injunction dissolved and petition dismissed.

Attorneys—Virgil Dorfmeier for Stoddard; Egan & Delscamp for Long; all of Dayton.