Upper Arlington Co. v. Lawwell , 20 Ohio App. 362 ( 1925 )

The plaintiff is the owner of certain lots and lands in Upper Arlington, and is the promoter of the Upper Arlington additions, and on behalf of itself and other lot owners seeks to enjoin the defendant from maintaining and operating a dwelling upon her lot in one of said additions in violation of building restrictions. The restrictions involved in litigation are as follows:

"Said grantee as a part of the consideration for this deed for themselves, their heirs and assigns, hereby covenant and agree with said grantor, his heirs and assigns:

"First. That said premises shall be used for residence purposes only and not for any purpose of business or trade.

"Second. That no building, except one single, private dwelling house with necessary outbuildings, shall be erected or maintained on said premises — such dwelling house to cost not less than $6,000 — it being intended by this provision to prohibit, among other things, the erection of any double, duplex or apartment houses on said premises."

The defendant's house as originally constructed conformed to the restrictions. Subsequently, however, the defendant remodeled the house by changing a window to a door, thus providing what may be styled an additional outside front entrance; an interior door was constructed so as to separate the stairway to the second floor from the living rooms on the first floor; a kitchenette was constructed on the second floor; and the second floor, with the use of the stairway and outside entrance, was rented to a separate family, consisting of husband and wife and one child. The owner and family occupied the first floor, and had joint use of the stairway leading to the second floor and the bathroom on the second floor.

No claim is made that the remodeling of the house and the use of the same for two families violated the restrictive provisions as to the user of the property, but it is claimed that such remodeling of the house, and the maintenance of it as a duplex or double, constitute a violation of the second provision of the restrictive covenant. Counsel for the defendant contend that the restrictive covenants as to the building relate only to the original construction of the building, and not to the remodeling. It is true that restrictive covenants are construed favorably to the owner, and strictly against the restrictions of the covenant. Nevertheless, when the meaning and intention of the covenant is clear, a substantial violation thereof will be enjoined at the suit of any one legally interested in the enforcement of the covenant.

It will be observed that the restriction to one single, private dwelling house relates, not only to the erection, but to the maintenance thereof. The subsequent clause in the covenant elaborating the intention does not purport to be the exact statement of the restrictive obligation. Consequently we must get back to the real restrictive contract for an exact expression. The use of the words "among other things" is evidence that the latter clause does not state the exact obligation. Other portions of the restrictive covenant use the words "erected or maintained," so that it is a reasonable presumption that the party must have intended that the restrictive obligation should apply not only to the original erection of a building, but also to the remodeling thereof. The cases cited by counsel for appellee with one exception do not contain the words "erect or maintain." The exception is a case from Massachusetts, Richmond v. Ames, 167 Mass. 265, 45 N.E. 919, which can be distinguished in its main facts from the case at bar.

This brings us to the question whether the remodeling of the defendant's house, as stated, is a violation of the restrictive covenant. Considering the pleadings and the agreed statement of facts, we cannot escape the conclusion that after the remodeling of the defendant's building, viewed in connection with the occupancy thereof, such building was no longer "one single, private dwelling house," but was in substance and effect a double or a duplex.

There is no strict or arbitrary rule for determining what is a single, private residence, or when such single, private residence becomes a double or duplex. In almost every case of a double or duplex, some portions of a lot or the building are used in common. Consequently the fact that the occupant of the first floor used the stairway and bathroom in common with the occupants of the second floor is not conclusive or even clear evidence that the house still remained one single, private residence. Giving the facts in the record a reasonable interpretation, or even construing the same strictly for the defendant, we cannot escape the conclusion that the restrictive covenant has been violated.

It is urged that the plaintiff is not in a position to obtain relief because it has consented to the erection of apartment houses in other portions of the subdivision, on the same street and within two squares of the defendant's residence.

The agreed statement of facts is not very definite upon this issue. It shows merely that an apartment house in another block of said subdivision has been erected with the plaintiff's knowledge. The burden would be upon the defendant to show something more than mere knowledge on the part of the plaintiff. But there is still another objection to this defense. It sufficiently appears from the pleadings and agreed statement of facts that Upper Arlington is not entirely restricted to a residential section, but provisions are made in certain sections for business and apartment houses. The fact, therefore, that apartment houses, or even business houses, are maintained in unrestricted sections of Upper Arlington, would not prevent the enforcement of the restrictive covenants in the residential or restricted sections. So far as it appears in this case, the apartment houses referred to may have been in sections properly devoted to apartment houses, and the fact alone that such apartment houses are upon the same street and within two squares of the defendant's residence would not be a defense. To make out such plea there should be a showing that the apartment house was erected in a restricted section and that the plaintiff was in some degree responsible therefor, or consented to or acquiesced in the construction or maintenance thereof.

We are therefore of the opinion that the decree must be for the plaintiff, and the defendant will be required to restore the original condition of the house in the following respects:

(1) The interior door on the first floor at the stairway should be removed.

(2) The kitchenette maintained on the second floor must be restored so as to conform to the original design of the house. We do not require that the defendant change the outside door involved in the remodeling, or that the plumbing in the kitchenette be removed, providing it can be used for purposes consistent with a single, private residence.

Decree accordingly.

FERNEDING and KUNKLE, JJ., concur.