David v. Bowen , 191 Ga. 467 ( 1941 )

A covenant in a deed to land, that the grantee "will not erect or suffer or license to be erected on lot above described any commercial or manufacturing establishment or factory or apartment-house of any kind at any time, or use or suffer to be used any building erected thereon for any such purpose," and "will not build more than one residence," but may build a garage, etc., is not violated by the grantee's successor in occupying the house as a residence and home and in using it as a boarding-house from which she earns her livelihood. Previous rulings distinguished.

No. 13491. JANUARY 15, 1941. Mrs. Margaret Bowen owned and occupied an improved lot in the subdivision of the City of Atlanta known as Atkins Park. It was occupied by her as residence of herself and family, in which she also kept boarders. R. T. David and several other owners of lots in the same subdivision, occupied by them as their residences, brought suit against Mrs. Bowen, to enjoin violation of certain restrictive covenants contained alike in the deeds of the plaintiffs and the defendant, coming from the same source, and being covenants running with the land; also to enjoin use of the building for operating a boarding-house in a zoned district under license from the city, as provided by the municipal-zoning ordinance and the license ordinance. At interlocutory hearing the judge by consent considered the pleadings and evidence, and an agreed statement of facts. A temporary injunction was refused, and the plaintiffs excepted.

The restrictive covenant was: "The said party of the second part [grantee], for himself, his heirs, executors, administrators, and assigns, does further covenant to and with said party of the first part [grantor] and assigns, as follows: that I [grantee] will not erect or suffer or license to be erected on lot above described any commercial or manufacturing establishment or factory or apartment-house of any kind at any time, or use or suffer to be used any building erected thereon for any such purpose; . . that I will not build more than one residence on said lot, but may build thereon a garage or stable in keeping with the residence thereon, and of sightly appearance." The alleged violation was that "she is now suffering the building erected thereon to be used for business and commercial purposes, in that she is operating a boarding and lodging-house thereon, whereby she is keeping some 12 or 15 boarders and lodgers in said property and charging therefor, thereby making a business out of said property, in violation of the restrictions hereinabove quoted," and that "defendant is now in the process of building an addition to her said property, whereby she is adding approximately four rooms to same . . for the purpose of converting said property into an apartment-house," and that "the building line fixed by the plats referred to in said restrictions is thirty (30) feet, and that the meaning of said building line is that the main body of the house shall not be nearer the street than 30 feet," and that "the building of the defendant, as well as all other buildings on said property, have been built with the foundations of the house 30 feet from the street line, with the porch thereof extending over the building line," and that "the addition now being built to the defendant's property is being built in line with the front edge of the porch approximately ten (10) feet nearer the street than the foundation wall of the main building." The zoning ordinance applicable to the property in question defines "dwelling" as "a building arranged, intended, or designed to be occupied by not more than two families living independently of each other and doing their own cooking upon the premises," and provides that "In a dwelling or apartment occupied as a private residence, one or more rooms may be rented or table-board furnished." The license ordinance provides that where more than five boarders are kept, a prescribed license shall be required. The property is in a zoned district, and the defendant has applied for a license to keep boarders in the building. According to the stipulations between the parties at the trial, the defendant at the time of the suit was keeping twelve or fifteen boarders, but no transients, and was constructing four additional bedrooms that were completed at the time of the trial. At the commencement of the action there were zoning and license ordinances as alleged, and the property is within a zoned district, and the defendant has applied for a license. "The defendant is not preparing to convert her property into an apartment-house, nor is she violating the building-line restriction, . . but she is using same for a boarding-house from which she earns her livelihood, and for a permanent home for herself and family." 1. "As a general rule, the owner of land in fee has the right to use the property for any lawful purpose, and any claim that there are restrictions upon such use must be clearly established. Limitations or restrictions by implication are not favored, and must be strictly construed.Randall v. Atlanta Advertising Service, 159 Ga. 217 (125 S.E. 462); Kitchens v. Noland, 172 Ga. 684 (158 S.E. 562);Atlanta Association of Baptist Churches v. Cowan, 183 Ga. 187 (188 S.E. 21)." Thompson v. Glenwood Community Club,191 Ga. 196 (12 S.E.2d 623).

2. The covenant in question is contained in a deed to land between private persons, and so far as material to be stated is: "I [grantee] will not erect or suffer or license to be erected on lot above described any commercial or manufacturing establishment or factory or apartment-house of any kind at any time, or use or suffer to be used any building erected thereon for any such purpose; . . that I will not build more than one residence on said lot, but may build thereon a garage or stable in keeping with the residence thereon, and of sightly appearance." Held:

(a) Construed strictly and most strongly against the grantor, the covenant is not violated by the defendant, successor in estate to the grantee, by occupying the dwelling-house on the lot as a residence and permanent home for herself and family, and using the same for a boarding-house from which she earns her livelihood.

(b) The words "commercial . . establishment" employed in the covenant, considered with their context, do not expressly or by necessary implication deny the right of the resident to make such use of the property. The case of Cutsinger v. Atlanta,142 Ga. 555 (83 S.E. 263, L.R.A. 1915B, 1097, Ann. Cas. 1916C, 280), did not involve construction of a restrictive covenant in a deed, or any such question. The case also differs from Jordanv. Tashiro, 278 U.S. 123 (49 Sup. Ct. 47, 73 L. ed. 214), involving construction of a treaty with a foreign nation, which, unlike private restrictive covenants, is to be liberally construed.

(c) The same restrictive covenant was involved in Reeves v. Comfort, 172 Ga. 331 (157 S.E. 629), but the alleged violation was by a tenant operating a tea-room not occupied by him as a residence. Operation of the tea-room was temporarily enjoined as violative of the covenant. On review, the case being for decision by all the Justices who were equally divided in opinion, the judgment was affirmed by operation of law. Such a judgment is not binding as a precedent.

(d) The case of John Hancock Mutual Life Insurance Co. v.Davis, 173 Ga. 443 (160 S.E. 393), involved a restrictive covenant in a deed, that "Said land shall not be used otherwise than for residence purposes, and shall not be used for a sanatorium, hospital, or infirmary, and no apartment-house shall be erected thereon." It was held that the operation of a boarding-house was not a violation of that covenant, and that the judge erred in granting the injunction. Five of the Justices concurred in the judgment of affirmance, and one dissented. That decision, not having been concurred in by all the Justices, is not binding as a precedent, but supports the view first above announced that the restrictive covenant now involved was not violated by the defendant in using the building as a residence and permanent home and keeping boarders therein for a livelihood.

3. It does not affect the case that the property is located in a zoned district provided by municipal ordinance regulating the keeping of boarders, and that the defendant had applied for a license for carrying on such business.

4. Under the pleadings and the evidence the judge did not err in refusing a temporary injunction.

Judgment affirmed. All the Justices concur.