Emma Harris v. Amanda B. Aldmon ( 2015 )


Menu:
  •                 IN THE COURT OF APPEALS OF TENNESSEE
    AT KNOXVILLE
    October 29, 2014 Session
    EMMA HARRIS ET AL. V. AMANDA B. ALDMON ET AL.
    Appeal from the Chancery Court for Knox County
    No. 180843-2   Michael W. Moyers, Chancellor
    No. E2014-00203-COA-R3-CV-FILED-MARCH 30, 2015
    In this appeal, the Court is asked to determine whether certain provisions of restrictive
    covenants recorded in 1917 are still in effect and enforceable against certain parcels of
    subdivision property that lay contiguous to North Broadway in Knoxville. Emma Harris
    filed a declaratory judgment action seeking the judgment of the trial court that a “used for
    residential purposes only” restriction is unenforceable as to her property due to changed
    conditions in the area and the abandonment of the restriction by waiver and/or
    acquiesence in other violations of the subject restriction. A defendant, Robert A.
    Whaley, a neighbor to the Harris property, filed a cross-claim seeking the same relief.
    The trial court, while finding that “it may well be that especially in [the] Harris[ ] case a
    just and equitable remedy would be the removal of the burden from her,” nevertheless
    went on to enforce the covenant. We affirm the trial court‟s judgment as to the property
    of cross-claimant Whaley, which property is improved with a relatively-large house
    inhabited by Whaley as his residence since 2001. The Harris property, on the other hand,
    consists of two contiguous unimproved lots that have never been built on since the
    subdivision was created in 1917. Considering the totality of the circumstances and
    equities, it is the judgment of the Court that, with respect to the Harris lots, the
    “residential purposes only” restriction is cancelled and unenforceable, but this decree is
    made subject to a restriction that no curb cut will be constructed to allow vehicular access
    from the Harris property to Gibbs Drive, a thoroughfare leading into the subdivision from
    North Broadway. Our decree is also subject to the Truan/plaintiffs agreement as reflected
    in Exhibit 33.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
    Reversed in Part with Restrictions Added and Affirmed in Part; Case Remanded
    CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which JOHN W.
    MCCLARTY, J., joined. D. MICHAEL SWINEY, J., not participating.
    1
    T. Kenan Smith, Knoxville, Tennessee, for the appellants, Emma Harris and Smith-
    Lindsey Development, LLC.
    Arthur G. Seymour, Jr., and Taylor D. Forrester, Knoxville, Tennessee, for the appellant,
    Robert A. Whaley.
    Dan D. Rhea, Knoxville, Tennessee, for the appellees, Amanda B. Aldmon, et al.
    OPINION
    I.
    In the early 1900s, acreage lying on both sides of Jackson Boulevard, now named
    Gibbs Drive, between North Broadway on the west and Jacksboro Pike on the east, was
    owned by developers with the last names of Gibbs and Maloney. They subdivided their
    acreage into 57 lots and, in 1917, granted deeds that contain restrictive covenants with
    respect to the use of the subdivision lots. The restriction primarily at issue in this case
    provides that “said premises shall be used for residential purposes only.” 1 The deeds to
    the lots in the subdivision–originally called the “Gibbs and Maloney Addition to Fountain
    1
    The other restrictive covenants in the deeds are as follows:
    That if a one story house is erected on said premises, it shall cost not less
    than Two Thousand ($2,000.00) Dollars, and if a two story house is
    erected thereon it shall cost not less than Two Thousand Five Hundred
    ($2,500.00) Dollars.
    That houses erected thereon shall face on Jackson Boulevard, and shall
    not be located less than Fifty (50) feet from said Boulevard, and that not
    more than one house at a time, not including outhouses, shall be erected
    on any one of said lots.
    That said lots shall not be sold to negroes and shall not be occupied by
    negroes other than as servants of the owner. [All of the parties in this
    litigation agree that this discriminatory provision is illegal and abrogated
    by law.]
    That the said Chas. R. Gibbs, G.E. Maloney and Frank Maloney,
    respectively, will retain all privileges for street car, for other car tracks,
    gas, water, and sewer pipes in and under the streets and alleys of said
    addition, and no rights in said streets and alleys are here conveyed or
    conceded except for the purposes of ordinary travel. [Agreed to now be
    obsolete].
    2
    City”2 and now called the historic Gibbs Drive neighborhood–also provide “that all these
    covenants and restrictions shall run with the land.”
    In 1978, Harris inherited two contiguous lots located in the subdivision and at its
    westernmost point and on the south side of Gibbs Drive. One of these contiguous lots
    fronts North Broadway, which has become, over the years, a heavily commercially-
    developed major thoroughfare in North Knoxville. Neither of the two Harris lots has
    ever been improved with a house or other permanent structure. The two lots together are
    1.62 acres in size.
    In 2001, Whaley bought the property across from the Harris lots, on the north side
    of Gibbs Drive. It is also contiguous to North Broadway to the west. The Whaley
    property is improved with a large house that he has lived in since he bought the property.
    Whaley‟s lot is approximately 1.5 acres.
    On July 15, 2011, Harris and Smith-Lindsey Development, LLC, filed this action
    asking the trial court to declare “that the Harris lots are no longer subject to the
    Restrictive Covenants, and that the Restrictive Covenants have been otherwise abrogated
    or rendered unenforceable as a matter of law as to the Harris lots only.” The complaint
    alleges that Smith-Lindsey contracted to buy the Harris lots, but only on condition that
    the subject restrictive covenant would be declared unenforceable as to the property. As
    later amended, the complaint further alleges:
    Currently, the Harris Lots consist of an empty field that is
    separated from the Gibbs & Maloney‟s Addition by
    vegetation.
    The Harris Lots are closest in proximity to North Broadway,
    and the development of the Harris Lots will not disturb the
    remaining lots in the Gibbs & Maloney‟s Addition.
    The area surrounding the Harris Lots has radically and
    significantly changed since the Restrictive Covenants were
    first recorded.    Further, there have been radical and
    significant changes within the neighborhood, such that the
    neighborhood has effectively abandoned the restrictive
    covenants. There have been businesses operating in the
    neighborhood for years. The waiver and/or abandonment has
    risen to the level of community acquiescence.          The
    2
    Fountain City was an unincorporated city lying north of the city of Knoxville before it was
    annexed into Knoxville effective February 11, 1962.
    3
    neighborhood has not been used for residential purposes only.
    There have been radical changes occurring inside the
    neighborhood and in near proximity to the neighborhood.
    Since the Restrictive Covenants were first recorded, the area
    surrounding the Harris Lots has been extensively developed
    for commercial and retail use. With one (1) exception, all
    other parcels fronting on North Broadway within at least one
    (1) mile of the Harris Lots (in either direction) have been
    developed and are being used for commercial and retail
    purposes.
    (Underlining in original; numbering in original omitted.)
    To assist the reader in understanding (1) the location of the Harris lot and the
    Whaley two-story, columned house, (2) their relationship to each other, (3) the Kroger
    store, and (4) North Broadway, we have reproduced Exhibit 15 from the record.
    Exhibit 15
    4
    This exhibit clearly shows, on the left of the photograph, the Kroger store and traffic on
    North Broadway, a four-lane highway for traffic proceeding north and south. This
    photograph also shows the Christmas tree business located on the Harris lots, including a
    camper-trailer, two parked vehicles, parts of two vehicles parked in the foreground of the
    photograph near the Chick-fil-A restaurant, and other things assorted with the business.
    Whaley‟s columned home is circled. The vegetative barrier between the Harris lots and
    property owned by a couple named Truan is on the far right of the photograph. The
    photographer is situated near the south boundary of the Harris lots, which is also the
    north boundary of the Chick-fil-A.
    The complaint named as defendants the other property owners in the subdivision.
    Whaley, a named defendant, filed a notice indicating his consent to the relief sought by
    Harris. Three other landowners in the neighborhood also filed notices of consent,
    including, interestingly enough, the owners of the property on the east boundary of the
    Harris lots, Kevin Truan and Helen Truan. The Truans‟ consent was dependent on
    certain enumerated conditions, primarily that the new owners of the Harris property
    would create and maintain an appropriate buffer zone of fencing and landscaping
    between their property and the Harris lots. The other landowners in the neighborhood
    opposed the removal of the restrictive covenants.
    Whaley filed a cross-claim requesting that his property also “be declared to no
    longer be subject to the restrictive covenants set forth in the Gibbs and Maloney Deed as
    such restrictive covenants have been abandoned or have been abrogated by changed
    circumstances and thereby rendered unenforceable as a matter of law” as to his property.
    Whaley alleged that he had tried to sell his property, but that no one was interested in
    buying it as residential property. An attorney had offered to buy it for the dual purpose of
    living in the house and using it as a law office. Apparently, that deal fell through when
    the neighborhood association told Whaley that it would oppose the erection of any sign
    on the property advertising a law office.
    A substantial part of the evidence offered at the bench trial revolved around the
    activity in the neighborhood that was alleged to have violated the “residential purposes
    only” covenant‒predominantly home-based businesses where occupants did some kind of
    work out of their homes. It was generally undisputed that the area around the subdivision
    along North Broadway in the Fountain City area of Knoxville has radically changed since
    1917, becoming intensely and almost exclusively commercial. The trial court found that
    the original object of the restrictive covenants “was the creation and preservation of a
    residential neighborhood, and to all appearances that is exactly what the restrictions have
    achieved, regardless of what incidental and unobtrusive home occupations may be
    occurring behind closed doors.” The trial court further stated as follows:
    5
    [T]hese findings result in a substantial burden upon the
    Plaintiffs, especially Miss Harris who, it is credibly argued,
    cannot make any reasonable use of her property as it is
    currently situated. The evidence is uncontroverted that the
    burden upon her estate is great, and that so long as it is
    subject to the restrictions set forth in the 1917 covenants, it
    cannot reasonably be developed for any purpose consistent
    with the covenants, as it is entirely surrounded by commercial
    uses and fronts a road (North Broadway) that since 1917 has
    evolved from a sleepy boulevard to a major commercial and
    arterial hub.
    *         *   *
    [I]t may well be that especially in Miss Harris‟ case a just and
    equitable remedy would be the removal of the burden from
    her (and perhaps Mr. Whaley‟s) property alone, keeping the
    covenants in place for the remainder of the community.
    However, equity must follow law, and while the Plaintiffs
    have presented some precedent from other jurisdictions
    suggesting that courts may under similar circumstances
    choose to remove selected properties from the burden of
    restrictive covenants on a theory of comparative benefit, thus
    far no Tennessee Court has suggested that our courts of
    equity enjoy such authority.
    It is apparent from a reading of the above, and other comments of the trial court, that the
    court considered itself bound by an “all or nothing” legal principle requiring it to
    eliminate the restrictive covenants either as to all of the subdivision properties, or none of
    them. As can be seen, the trial court followed this perceived rule of law and found that
    the court was without authority to fashion an equitable remedy that removed or modified
    the subject restriction from less than all of the subdivision lots. Both Harris and Whaley
    timely filed a notice of appeal.
    II.
    The issue raised by both the plaintiffs and Whaley is whether the trial court erred
    in refusing to declare the subject restrictive covenant unenforceable as to their respective
    properties due to changed conditions and abandonment by waiver and/or acquiescence.
    Harris raises the additional issue of whether the trial court erred when it held that the
    6
    original restrictive covenants were binding on successor owners of the property based
    upon language in the deeds stating that the covenants “shall run with the land.”
    III.
    The facts in this case are essentially undisputed. The only questions presented to
    us raise purely legal issues. As legal issues, there is no presumption of correctness as to
    the trial court‟s legal conclusions. Kendrick v. Shoemake, 
    90 S.W.3d 566
    , 569 (Tenn.
    2002); Campbell v. Florida Steel Corp., 
    919 S.W.2d 26
    , 35 (Tenn. 1996). These are
    issues solely for us.
    IV.
    A.
    We will first address the issue raised only by Harris, i.e., whether the trial court
    correctly held that the restrictive covenants are binding on successor grantees. The
    original deed to every subdivision lot expressly provides that “all these covenants and
    restrictions shall run with the land.” We recently addressed this issue in State v. Dyskin,
    No. E2013-02286-COA-R3-CV, 
    2015 WL 382709
    at *3 (Tenn. Ct. App. E.S., filed Jan.
    30, 2015), stating as follows:
    Almost a century ago, the Supreme Court . . . reiterated the
    following rule:
    The question then arising is whether the said
    covenant runs with the land, or was personal to
    the grantees under the deed. This court has in
    several decisions adhered to the second
    resolution in Spencer‟s Case, 5 Co. 16, [77 Eng.
    Rep. 72 (Q.B.1583) ] and held that a covenant
    in respect to something not in esse must
    specifically bind the assignees of the covenantor
    in order for such covenant to run with the land.
    Carnegie Realty Co. v. Carolina, C. & O. Ry. Co.,189 S.W
    371, 372 (Tenn. 1916). The High Court has reaffirmed and
    applied this rule several times. Farrar v. Nashville, C. & St.
    L. Ry., 
    36 S.W.2d 95
    , 98 (Tenn. 1931); Lowe [v. Wilson],
    250 S.W.2d [366,] 367 [Tenn. 1952]. This Court has done
    likewise. See Essary v. Cox, 
    844 S.W.2d 169
    , 171 (Tenn. Ct.
    
    7 Ohio App. 1992
    ); Hillis v. Powers, 
    875 S.W.2d 273
    , 275 (Tenn. Ct.
    App. 1993); Tennsco Corp. v. Attea, No. M2001–01378–
    COA–R3–CV, 
    2002 WL 1298808
    at *2 (Tenn. Ct. App.
    M.S., filed June 13, 2002).3
    (Footnote in original.) The rule reflecting the language described in Dyskin and the
    earlier cases is implicated in this case. The phrase “running with the land” or its
    functional equivalent has been defined as follows: “A covenant is said to run with the
    land when either the liability to perform it or the right to take advantage of it passes to the
    assignee of that land.” Black’s Law Dictionary, 6th ed. (1990) at 1333. Tennessee courts
    have consistently used “running with the land” as a legal term of art synonymous with the
    concept of “binding on future grantees or assignees.” See, e.g., Dyskin, 
    2015 WL 382709
    at *3. The intention of the original grantors in this case to bind remote grantees, as
    expressed in the language of the original deeds, is clear. The restrictions are applicable to
    Harris and the other owners in the subdivision. The trial court correctly resolved this
    issue.
    B.
    The plaintiffs and cross-claimant argue that the trial court should have held the
    restrictive covenant unenforceable as to their respective properties on the ground of
    changed conditions in and around the subdivision. They further assert that the defendants
    have abandoned the restriction requiring that property in the subdivision be used “for
    residential purposes only.” The leading case in Tennessee on the “changed conditions”
    concept is Hackett v. Steele, 
    297 S.W.2d 63
    (Tenn. 1956). The Hackett Court addressed
    circumstances and allegations similar in some respects to those in the present case. In
    Hackett, the action “was filed by the owners of certain lots in a subdivision restricted to
    residences for the purpose of having these restrictions cancelled on the basis that there
    had been such a radical change in conditions as to make the enforcement of said
    restrictions inequitable against the owners of the lots.” 
    Id. at 63.
    The restriction
    provided that for fifty years from the date of execution of the deed, “no building other
    than a dwelling or building ordinarily appertaining to dwelling houses shall be erected,
    maintained or used by the grantees, their heirs or assigns[.]” 
    Id. at 64.
    The plaintiffs in
    Hackett alleged that
    3
    We have also twice observed that “[w]hile this result has been criticized, see Case Comment, 22
    Tenn. L.Rev. 971 (1953), this court has consistently followed the rule, and the Supreme Court so far has
    refused to review it.” Tennsco Corp., 
    2002 WL 1298808
    at *2; see also Leach v. Larkin, No. 919193,
    
    1993 WL 377629
    at *5 n.8 (Tenn. Ct. App. M.S., filed Sept. 24, 1993). Thus, “the rule requiring specific
    language in the deed remains intact.” Tennsco Corp., 
    2002 WL 1298808
    at *2.
    8
    Through the lapse of time from 1922 until 1954, when this
    bill4 was filed, McCallie Avenue . . . has changed from a
    residential neighborhood to commercial and is a part of U. S.
    Highway No. 11, which runs east from McCallie Avenue out
    Brainerd Road; this latter has been widened into a four-lane
    highway, is heavily traveled and now built up with various
    sorts of business establishments on out to where said
    subdivision is located and the same is now within the city
    limits of Chattanooga.
    
    Id. (footnote added).
    The Supreme Court discussed the applicable legal principles
    stating, in pertinent part, as follows:
    [W]e first call attention to the fact that a difference is pointed
    out between the situation where an injunction is sought to
    enjoin the violation of the restrictive covenant on the one
    hand, and on the other hand where there is a proceeding in
    equity for the purpose of cancelling the restrictions
    completely. The difference is, of course, that once the
    restrictions are done away with all litigation in regard thereto
    is forever after foreclosed.
    *       *       *
    [D]espite the tendency of some American Courts to adopt a
    doctrine of comparative benefits, and while a radical change
    in conditions and in the neighborhood surrounding restricted
    property will deter practically all American Courts from
    granting injunctive relief, an analysis of the cases as a whole
    discloses that equity will enforce restrictive covenants
    imposed for the benefit of the complainant‟s property, if they
    remain of substantial value, notwithstanding the resulting
    hardship to the servient estate, where the complainant comes
    into Court with clean hands and guiltless of laches, waiver or
    estoppel.
    *       *       *
    4
    Prior to the adoption of the Rules of Civil Procedure, the leading pleading in chancery court was
    called a “bill.”
    9
    To sum up, Courts of Equity, in passing upon cases of this
    character, grant or withhold injunctive relief depending upon
    the accomplishment of an equitable result in the light of all
    the circumstances surrounding the particular case and grant or
    withhold affirmative relief depending upon whether the
    restrictive covenant remains of substantial benefit to the
    dominant estate or whether its purpose has been defeated by a
    radical change in the character of the neighborhood.
    
    Id. at 66
    (quoting 4 A.L.R. 2d at 1114
    , 1116 (1949)) (emphasis in original).
    The Hackett Court, quoting at length with approval the case of Bickell v. Moraio,
    
    167 A. 722
    (Conn. 1933), went on to say the following:
    The creation, in a building development scheme, of an area
    restricted to residential purposes, contemplates the continued
    existence of such an area from which business is excluded.
    That it also contemplates that business may extend to the
    confines of the area is apparent, since it is to prevent the
    encroachment of such business into the protected area that the
    restrictions are created. Purchasers of lots in such an area buy
    in reliance upon the fact that all other lots in the area are
    subject to the same restrictions as those contained in their
    own deeds, and that the entire development will retain its
    character as a purely residential district. So long as it remains
    possible to carry out the original purpose of the development,
    each purchaser of a lot has a right to the protection of his
    easement in all the other lots in the restricted area, in the
    absence of conduct on his part constituting laches, waiver, or
    abandonment. It is only when there has been a radical change
    in the conditions existing when the restrictive covenants were
    created which completely defeats the objects and purposes of
    the covenants so that they are no longer effective, and their
    enforcement would not afford the protection which was in the
    contemplation of the parties, that equity will hold the
    restrictions no longer enforceable.
    
    Id. at 67
    (emphasis added).
    This Court has applied the principles espoused in Hackett to deny declaratory
    relief sought by plaintiffs in two later cases. Caudill v. Hamlet, 
    490 S.W.2d 538
    , 542
    10
    (Tenn. Ct. App. 1972) (declining to remove restrictive covenants where “it appears that
    this subdivision of eighty-one lots constitutes a comparatively large residential area and
    that no relaxing of the covenants requiring the building of residences only has occurred”);
    Russell v. Merrywood-Kingston Pike Estates Neighborhood Ass’n, Inc., No. 03A01-
    9801-CH-00014, 
    1998 WL 474079
    at *2-3 (Tenn. Ct. App. E.S., filed July 29, 1998). In
    Russell, we observed the following rationale for the general principles stated in Hackett:
    [T]he reason to avoid granting such relief is well stated in 20
    Am.Jur.2d Covenants, Etc., § 247 p. 670-1:
    Generally, the fact that a small portion of a
    restricted district, lying along the edge or at the
    threshold thereof, is thus forced to bear the
    brunt of attack from changed conditions outside
    the district, with resultant impairment in value
    for the use prescribed by the restrictions, does
    not justify abatement of the restrictions as to the
    part affected because of the hardship visited
    upon that particular land as compared with the
    sheltered or interior portion of the district, the
    view being that one of the best places to hold
    the line against encroachment of business and
    commerce upon the restricted area is at a
    highway or street, since otherwise there would
    be started a system of gradual encroachment
    which might swallow up the entire residential
    area, with the interior tiers of lots “falling like
    ten pins” once such encroachment began.
    [M]ost convincingly, the fact that the complaint does not
    factually negate the proposition that as a matter of equity
    most, if not all, of the remaining restricted lots benefit from
    the restrictions, and those parties under the complaint have a
    basis in equity to enforce the restrictive covenants for the
    protection of their property.
    
    1998 WL 474079
    at *2-3 (quoting 20 Am.Jur.2d Covenants, Conditions and Restrictions
    § 247 at pp. 670-71).
    We have also applied Hackett to grant injunctive relief to landowners bringing suit
    to enforce restrictive covenants against neighbors attempting to use their land in ways
    11
    that violated the restrictions. See Hewgley v. Vivo, No. 01A01-9506-CH-00266, 
    1997 WL 92077
    at *2 (Tenn. Ct. App. M.S., filed Mar. 5, 1997) (observing that restrictive
    covenants “can lose their force when they fail to serve a useful purpose” and “may be
    rendered unenforceable if radical changes in the character of the entire neighborhood
    completely defeat the purpose of the covenant” and stating, “[w]hen determining whether
    a restrictive covenant continues to serve any useful purpose, the courts must be concerned
    primarily with the continuing value of the restrictive covenant to the entire neighborhood,
    not the hardship to the parties attempting to avoid the restrictive covenant”); Jones v.
    Englund, 
    870 S.W.2d 525
    , 528 (Tenn. Ct. App. E.S., filed Aug. 20, 1993) (proof
    showing increased traffic and number of year-round residents “does not represent the
    kind of material change that would justify a suspension of the restrictions in the deeds”).
    As can be seen from the above-cited authorities, the test for determining whether a
    restrictive covenant has become unenforceable due to changed circumstances is a
    stringent one, and has rarely resulted in relief to the party seeking avoidance of the
    restriction. But see Hysinger v. Mullinax, 
    319 S.W.2d 79
    , 81 (Tenn. 1958) (applying, as
    the law of the case, earlier Chancery Court decision that “it would be inequitable to
    enforce the restrictive covenants under existing circumstances,” that neighborhood “had
    ceased to be desirable for residential purposes” and concluding that “the Chancellor was
    eminently correct in holding that it would be inequitable to enforce these restrictive
    covenants”) (emphasis in original). The plaintiffs and cross-claimant in this case have
    alleged, however, that in addition to the changed circumstances in the character of the
    relevant area from residential to commercial, the other subdivision residents have
    abandoned the restrictions, by waiver and/or acquiescence, in failing to object to various
    non-residential uses of multiple properties in the neighborhood over the years.
    The parties agree that the general legal principles applicable to such a claim of
    abandonment were set forth by this Court in Scandlyn v. McDill Columbus Corp., 
    895 S.W.2d 342
    , 349 (Tenn. Ct. App. 1994):
    [R]estrictive covenants are rendered unenforceable by
    abandonment. Abandonment is defined as “community
    acquiescence” to continued violations of such restrictions.
    However, in order for community violation to constitute an
    abandonment, it must be so general as to frustrate the object
    of the scheme with the result that enforcement of the
    restriction involved would seriously impair the value of the
    burdened lot without substantially benefiting the adjoining
    lots. Accordingly, sporadic and distant violations do not in
    themselves furnish adequate evidence of abandonment,
    12
    although they may be considered in connection with outside
    changes. 20 Am.Jur.2d Covenants, Conditions, Etc. § 272
    (1965).
    The right to enforce a restrictive covenant may be lost due to
    such acquiescence by waiver or estoppel:
    This is so, for instance, where, by failing to act,
    one leads another to believe that he is not going
    to insist upon the covenant, and such other
    person is damaged thereby, or whereby
    landowners in a tract or subdivision fail to
    object to general and continuous violations of
    restrictions. If the party entitled to the benefit
    of the covenants in any way by inaction lulls
    suspicion of his demands to the harm of the
    other or if there has been actual or passive
    acquiescence in the performance of the act
    complained of, then equity will ordinarily refuse
    aid.
    20 Am.Jur.2d Covenants, Conditions, Etc. § 273 (1965).
    (Emphasis added); see also Strickler v. Garrison, No. 03A01-9705-CH-00181, 
    1997 WL 772848
    at *5 (Tenn. Ct. App. W.S, filed Dec. 11, 1997); Ruth v. Cove Creek, LLC., No.
    03A01-9805-CH-00167, 
    1999 WL 172644
    at *1 (Tenn. Ct. App. E.S., filed Mar. 24,
    1999) (noting that “other landowners, including some of the Plaintiffs, violated the
    restriction by erecting various outbuildings and multiple car garages. We do not believe,
    however, that Cove Creek has borne its burden to show that such violations are so wide
    spread as to vitiate the restrictive covenant the Plaintiffs seek to sustain”); Wilson v.
    Woodland Presbyterian School, No. W2001-00054-COA-R3-CV, 
    2002 WL 1417064
    at
    *4 (Tenn. Ct. App. W.S., filed June 25, 2002) (“in order to establish abandonment, the
    defendant must show that there were previous violations of the covenants in which the
    community acquiesced, and that these violations frustrated the community‟s restrictive
    scheme”).
    In Taylor v. Burleson, No. E2001-02381-COA-R3-CV, 
    2002 WL 1870269
    at *1,
    (Tenn. Ct. App. E.S., filed Aug 15, 2002), the plaintiffs “sought to invalidate subdivision
    restrictive covenants on grounds [that] other lot owners had violated the restrictions.”
    The restriction under attack provided “that the lots are to be used for residential purposes
    only.” 
    Id. In analyzing
    the abandonment claim, we stated as follows:
    13
    Plaintiffs attack these restrictions on the grounds that one of
    the lots is used by a church, and there was a lot that was used
    as a nursing home, and other lots have been used for “cottage
    industries,” such as a pet shop, beauty salon and photo studio.
    *        *    *
    In order to constitute abandonment, violations must be “so
    wide spread [sic] as to vitiate” the restrictive covenant at
    issue. In a case factually analogous, the Court in Hardesty v.
    Silver, 
    302 S.W.2d 578
    (Ky. Ct. App. 1956), found that there
    were homeowners with home-based businesses in the
    development, but concluded that acquiescence in “slight and
    inconsequential” violations would not prevent another
    property owner from objecting to a substantial violation.
    Similarly, in this case the prior violations, a beauty shop, an
    antique shop, and a nursing home, as well as the current
    violations of a pet shop and photo studio, have all consisted
    of residences which had an incidental business use in them as
    well. The only exception is the church, but it has not been
    characterized as “commercial” by anyone but the plaintiffs,
    and it was clear that none of the homeowners even knew it
    was in the subdivision until this action was filed. The houses
    with the businesses were not altered in any way, and in most
    cases, there was no outward manifestation which would
    indicate that any business was located therein. These past and
    current uses are significantly different from plaintiffs‟
    proposed use, which will be a large, completely commercial
    structure in both appearance and purpose.
    We hold that the Trial Court was correct in finding that the
    residential character of the neighborhood has not been
    abandoned. The evidence preponderates that there has been
    no community acquiescence which would be sufficient “to
    frustrate the object of the scheme with the result that
    enforcement of the restriction involved would seriously
    impair the value of the burdened lot without substantially
    benefitting the adjoining lots.”     Scandlyn v. McDill
    Columbus Corp., 
    895 S.W.2d 342
    (Tenn. Ct. App. 1994).
    14
    
    2002 WL 1870269
    at *1, 2 (internal citations omitted).
    In Kerney v. Endres, No. E2008-01476-COA-R3-CV, 
    2009 WL 1871933
    (Tenn.
    Ct. App. E.S., filed June 30, 2009) (“Kerney I”), the plaintiffs alleged that the operation
    of an in-home beauty salon violated the neighborhood restrictive covenants “that the
    property shall be used for residential purposes only and not „any commercial
    undertaking.‟ ” 
    Id. at *3.
    The beauty shop owners responded that the home business was
    merely incidental to their residential use of the property, and did not violate the covenant.
    We said:
    Carr v. Trivett, [
    143 S.W.2d 900
    (Tenn. Ct. App. 1940)], . . .
    illustrates that the courts of Tennessee are in agreement with
    the general proposition that whether an incidental use of
    residential property for business purposes is in violation of a
    covenant restricting use to residential purposes depends upon
    the wording of the restriction and the extent and nature of the
    use.
    *        *     *
    We understand that in a case where one use is explicitly
    permitted but the actual use is not exactly within the
    permitted use, some analysis should be made to determine
    whether the actual use should be allowed as incidental to the
    permitted use. We are not convinced, however, that an actual
    use which is explicitly prohibited will be allowed to continue
    as incidental to a permitted use. For example, in Laughlin v.
    Wagner, 
    244 S.W. 475
    , 478 (Tenn. 1922), a residential
    restriction resulted in the holding that lots could be used for
    purposes incidental to residential use, such as flower beds and
    walkways, but not as driveways to a prohibited business use.
    Furthermore, we do not agree that defendants‟ beauty salon
    was merely an incidental use. . . . To borrow again from the
    language in Carr, “We think such an undertaking is
    substantially different from the incidental use of a dwelling
    for purposes, not strictly residential in character, from which
    the owner derives some income or profit but which may not,
    by any fair construction, be termed a business or trade.” 
    Id. at 903.
    Defendants were clearly running a business out of
    their home.
    15
    Kerney I, 
    2009 WL 1871933
    at *5.
    Following our remand of Kerney I to determine whether there had been an
    abandonment of the restrictive covenant by waiver and/or acquiescence, it was again
    appealed. Kerney v. Endres, No. E2010-02217-COA-R3-CV, 
    2011 WL 5331690
    (Tenn.
    Ct. App. E.S., filed Nov. 7, 2011) (“Kerney II”). We stated as follows:
    Although the Trial Court found commercial use of six
    surrounding parcels, the evidence in the record on appeal
    reveals that the alleged commercial uses included two high
    school or college age individuals who mowed lawns or gave
    swimming lessons, a neighbor who parked work-related
    vending trucks at their property, and three past businesses,
    i.e., an automobile detailing business and two day-cares, all
    three of which closed some time ago. . . .
    [W]e do not agree that the young individuals who mow lawns
    or give swimming lessons qualify as commercial businesses
    which would be violations of the restrictive covenants “so
    pervasive „as to frustrate the object of the scheme with the
    result that enforcement of the restriction involved would
    seriously impair the value of the burdened lot without
    substantially benefiting the adjoining lots.‟ ” Nor do we
    agree that a neighbor who parks a work-related vehicle in a
    driveway meets this standard.         Furthermore, the other
    neighbors from the subdivision . . . were completely unaware
    of any businesses in the neighborhood other than Defendants‟
    beauty shop, and the young man who mows lawns. . . . The
    preponderance of the evidence in the record shows sporadic
    and non-pervasive violations, at best, which are insufficient to
    prove community waiver or abandonment.
    Kerney II, 
    2011 WL 5331690
    at *5 (internal citations omitted).
    In Roberts v. Bridges, No. M2010-01356-COA-R3-CV, 
    2011 WL 1884614
    (Tenn.
    Ct. App. W.S., filed May 17, 2011), we again addressed an alleged violation of a
    “residential purposes only” covenant, and stated:
    This Court has previously held that the restriction of
    permitted uses to “residential purposes only” means a
    16
    property “is limited to use for residential, as opposed to
    commercial or other purposes.” Parks v. Richardson, 
    567 S.W.2d 465
    , 470 (Tenn. Ct. App. 1977); see also Carr v.
    Trivett, 
    143 S.W.2d 900
    , 903 (holding that a restrictive
    covenant providing that property “shall not be used except for
    residential purposes” is “clear and unambiguous and cannot
    be reasonably construed otherwise than as a prohibition
    against the use of the property for any purposes other than for
    residential purposes”). Tennessee courts, however, have
    distinguished between the principal use of a property for non-
    residential purposes and “the incidental use of a dwelling for
    purposes, not strictly residential in character, from which the
    owner derives some income or profit but which may not, by
    any fair construction, be termed a business or trade.” 
    Carr, 143 S.W.2d at 903
    . . . .
    Courts in other jurisdictions have reached different
    conclusions on the effect of a restrictive covenant requiring
    use of property for “residential purposes only.” Some courts
    interpret this and similar language as establishing “a bright
    line rule which prohibits any commercial or business use of
    property.” . . .
    A second approach avoids restricting minor or insignificant
    commercial activities, focusing on the purpose of restrictive
    covenants “to preserve the residential character of the
    neighborhood and to make the neighborhood more attractive
    for residential purposes.” This approach rejects a bright-line
    rule and permits incidental commercial use if the “use is in
    fact casual, infrequent, or unobtrusive and results in neither
    appreciable damage to neighboring property nor
    inconvenience, annoyance, or discomfort to neighboring
    residents.” This approach, however, requires “such additional
    use to be so reasonably incidental to the prescribed use and
    such a nominal or inconsequential breach of the covenants as
    to be in substantial harmony with the purpose of the parties in
    the making of the covenants, and without material injury to
    the neighborhood.”
    We adopt the latter approach to the enforcement of restrictive
    covenants. . . . Unless prohibited by the plain language of a
    17
    restrictive covenant, we conclude the incidental use of a
    property for commercial purposes is permissible if it is in fact
    casual, infrequent, or unobtrusive and results in neither
    appreciable damage to neighboring property nor
    inconvenience, annoyance, or discomfort to neighboring
    residents.
    We agree with the trial court that the gathering of employees,
    the parking of their vehicles for extended periods, the parking
    of the large tour bus, and the parking of panel trucks on
    Homeowners‟ property solely in the furtherance of Mr.
    Bridges‟s music business constituted use of the property for
    commercial purposes.
    
    2011 WL 1884614
    at *7-9.
    With these legal principles in mind, we now turn to the evidence presented at trial.
    Seven witnesses testified: Harris and Whaley; James Smith, a representative of plaintiff
    Smith-Lindsey Development; real estate expert Richard Smith; and three neighborhood
    landowners. Numerous photographs, and a video of a driving tour up and down Gibbs
    Drive that depicted the neighborhood, were introduced. Very few, if any, of the facts
    presented into evidence were or are now disputed. The testimony established that several
    residents were operating home-based businesses of various kinds. Much attention was
    focused on a former electrical contracting business that had been located at one of the
    houses that had been owned by the Marlow family. Daniel Marlow testified that he
    formerly lived at 2815 Gibbs Drive, next to the property adjacent to the Whaley lot, and
    ran a business called Electric Service Company. He had his employees park company
    vans on the property and stored certain equipment and inventory outside on the property.
    Counsel for the defendants conceded that this activity on the Marlow property was
    commercial activity violative of the “residential purposes only” restriction, but argued
    that it was a singular and isolated case. It was undisputed that at time of trial, Marlow
    had sold the house and it was then being used solely as a family residence. It was also
    undisputed that every year since the 1980s, for about six weeks before Christmas,
    Christmas trees and wreaths were sold off of the Harris lots ‒ a significant fact that we
    will discuss in greater detail below.
    The trial court entered an extensive memorandum opinion and final order finding
    and holding, in pertinent part, as follows:
    The Gibbs and Maloney Addition (hereinafter referred to as
    “the subdivision”) runs along what is now known as Gibbs
    18
    Drive, extending from North Broadway . . . to Jacksboro Pike.
    [T]here are roughly 52 [houses] in the subdivision. The
    entirety of the property, including the parcels owned by the
    Plaintiffs, is zoned R-1 Residential by the City of Knoxville.
    The street, and all of its homes, has been included on the
    National Register of Historic Places by the Department of the
    Interior.
    *        *    *
    North Broadway over the years since the creation of the
    subdivision has evolved into a major arterial highway
    carrying heavy residential and commercial traffic, including
    semi-trucks. To the west of the subdivision, directly across
    Broadway, is a large Kroger Grocery store. To the south of
    Miss Harris‟ lots is a new fast food restaurant.5 To the north
    of Mr. Whaley‟s property is another multi-business retail
    development. The evidence indicated that the whole of
    Broadway from the I-640 interchange to north of the
    Plaintiffs‟ property is devoted to retail and commercial
    development. . . .
    Plaintiff Emma Harris testified that she had owned the
    property (held previously in trust for her) since 1978. She
    testified that in that time she had received many offers to
    purchase the property for commercial development but had
    received no offers for development of the property as a
    residence. She lives in Nashville and apparently has no
    interest in using the property as a residence for herself.
    Mr. Whaley testified that he had purchased his house in 2001
    and had done extensive renovations on it. He testified that he
    was in ill health and needed to sell it, but has received no
    offers on his half-million asking price except from persons
    interested in use of the property for commercial purposes. He
    testified that he did receive an offer to purchase the property
    from a lawyer who intended to use the home as a law office;
    however, the offer was apparently rescinded when the
    community objected to the attorney‟s plans to erect a sign in
    5
    Chick-fil-A.
    19
    front of the building. The defendants are the remaining
    property owners in the subdivision.
    The Plaintiffs‟ evidence chiefly consisted of testimony
    regarding various ways in which they claim that the
    subdivision is not enforcing the covenants and restrictions.
    *        *    *
    Apart from the Marlow property, the remainder of the
    Plaintiffs‟ evidence concerned various other properties in
    which it was alleged that there are or were home based
    businesses operating, including a lawn mowing service, a
    carpenter, piano teacher, and an insurance agent. The
    testimony indicated that all of these activities were
    undertaken by the residents of the home (with the exception
    of Mr. Helton the insurance broker, whose non-resident
    girlfriend also acted as his secretary.) The evidence was that
    these businesses generated little if any traffic or noise in the
    neighborhood and none of the homes in the neighborhood are
    adorned with any signs or other external indicia of commerce.
    *        *    *
    The businesses, apart from the Marlow business, appear to be
    in the nature of “home offices,” wherein the residen[ts] have
    carried on business activities incidental to their residence
    within. No evidence has been adduced that any residences
    have been used for large or even small scale retail use, and
    none have been storefronts in which absentee owners merely
    used the homes as business addresses while residing
    elsewhere.
    *        *    *
    In the present case, apart from the Marlow property, it
    appears that all of the alleged “commercial activity” in the
    neighborhood was incidental to the primary use of the
    properties as residences (and in fact even the Marlows resided
    on the property from which they operated their business.)
    There presently are no external indicia of commerce in the
    20
    neighborhood.       The video tour of the neighborhood
    introduced as Exhibit 45 and the photographs of the homes in
    the neighborhood, introduced as collective Exhibit 46,
    indicate that for all appearances the neighborhood is entirely
    residential.. . . .
    The evidence . . . suggests at most the kind of “sporadic and
    non-pervasive” violations (if violations they are, see Roberts
    v. 
    Bridges, supra
    ) that do not rise to the level of
    demonstrating that they “frustrate the object of the scheme”
    that underlay the imposition of the restrictions. It seems clear
    to the Court that the “object” of the original Grantors of the
    Gibbs and Maloney Addition was the creation and
    preservation of a residential neighborhood, and to all
    appearances that is exactly what the restrictions have
    achieved, regardless of what incidental and unobtrusive home
    occupations may be occurring behind closed doors.
    (Footnote added.) The trial court believed that removal of the subject restriction solely
    from the Harris property “(and perhaps Mr. Whaley‟s)”, while leaving that restriction in
    effect as to all the other properties, would be an equitable result under the circumstances.
    Nevertheless, the trial court found that it lacked the authority to do so. We disagree with
    that legal conclusion.
    In Land Developers, Inc. v. Maxwell, 
    537 S.W.2d 904
    , 917 (Tenn. 1976), the
    Supreme Court observed that,
    the defendants below insisted that there has been such a
    material change in the character of the vicinity and such
    growth of commercial development in and around it as to
    justify the Court, acting on equitable principles, to terminate
    all residential restrictions on the subject property. The courts
    in this state have such power, and in appropriate cases have
    exercised it. . . . The legal theory governing such relief and
    the type of proof required to justify it are discussed fully in
    the case of Hackett v. Steele, 
    201 Tenn. 120
    , 
    297 S.W.2d 63
                  (1956).
    (Emphasis added.) The Hackett Court stated that “Courts of Equity, in passing upon
    cases of this character, grant or withhold injunctive relief depending upon the
    accomplishment of an equitable result in the light of all the circumstances surrounding
    21
    the particular 
    case.” 297 S.W.2d at 66
    (emphasis added). In Caudill, the trial court
    cancelled restrictive covenants on 9 of the 81 lots in a subdivision, leaving the other lots
    subject to the 
    covenants. 490 S.W.2d at 538
    . Although this Court reversed the decision,
    we did not do so on the grounds that the trial court had authority only to cancel either all
    or none of the restrictive covenants, nor did we hint at any such rule. We have reviewed
    all of the above-cited Tennessee opinions, and summaries of jurisprudence from other
    jurisdictions, i.e., Restatement (Third) of Property (Servitudes) § 7.10 (2000),
    Modification and Termination of a Servitude Because of Changed Conditions; § 7.4,
    Modification or Extinguishment by Abandonment; 
    25 A.L.R. 5th 123
    (1994), Waiver of
    Right to Enforce Restrictive Covenant by Failure to Object to Other Violations; 
    76 A.L.R. 5th 337
    (2000), Change in Character of Neighborhood as Affecting Validity or
    Enforceability of Restrictive Covenant; 
    1 A.L.R. 6th 135
    (2005), Construction and
    Application of “Residential Purposes Only” or Similar Covenant Restriction to
    Incidental Use of Dwelling for Business, Professional, or Other Purposes. None of these
    authorities suggest an “all-or-nothing” rule preventing a court from cancelling or
    modifying restrictions on equitable principles for only one, or some, of the properties in a
    subdivision. Furthermore, such a rule would remove the flexibility useful in analyzing
    properties that are separate and unique. We hold that the trial court did have authority to
    remove the covenants from less than all of the properties.
    We further hold that under the unique circumstances of this case, fairness and
    equity require a holding that the subject restrictive covenant on the Harris property is
    unenforceable for the following reasons. First, there has been such a radical change in
    conditions and the area surrounding the Harris property that (a) it no longer “appears” to
    be part of the subdivision and (b) it is impossible for her property to be used in the
    manner intended in the original deeds. Real estate expert Richard Smith testified that the
    property is unsuitable and unmarketable as residential property, and therefore nearly
    worthless as long as the restrictive covenant is enforced as written. Defense counsel
    conceded the correctness of this opinion, and, at oral argument, also conceded the
    unfairness of Harris‟ situation as it currently stands. Second, the properties of Harris and
    Whaley are the only lots in the subdivision uniquely situated so that the commercial
    development has encroached upon their properties from multiple sides. We have viewed
    the photographs and video submitted into evidence. The Harris property is, simply
    stated, an open field. To the west is North Broadway, unobstructed by landscaping or
    anything else, and across the street is a large Kroger shopping center. To the south is a
    newly-opened Chick-fil-A restaurant, also unobstructed. To the north is Gibbs Drive and
    Whaley‟s property across the street, partially obstructed by a wooded area. To the east is
    a wooded area that separates the Harris property from the rest of the neighborhood and
    the adjacent Truan property.
    22
    Third, the expert testimony of Richard Smith establishes that the property could be
    developed with landscaping that would maintain and even improve the residential
    character of the rest of the neighborhood. Smith testified in his affidavit that,
    [t]he lots at issue (2800 Gibbs Drive and 2806 Gibbs Drive)
    could be developed commercially with an appropriate buffer
    of trees, shrubs and a privacy fence which would result in
    minimal impact, if any, on the Gibbs Drive neighborhood. In
    fact, in my opinion, an improvement of the existing buffer to
    include some evergreen trees would actually be a significant
    improvement to the privacy of the neighborhood.
    He testified at trial that if there were a sufficient buffer maintained, the Harris property
    could be developed without impacting the Gibbs Drive neighborhood behind it, and
    further stated as follows:
    [B]eing able to assure that this barrier that‟s there now and
    even conceivably better than what‟s there – because they‟re
    going to put a fence and evergreens; there‟s no real
    evergreens in it now ‒ if that was there, I think it‟s a great
    improvement and would protect the neighborhood. It would
    be actually beneficial, I believe, to the neighborhood.
    Because what‟s there now, as it stands, those could be cut,
    removed, and I think that would be a terrible step in the
    neighborhood‟s interest.
    Harris‟ immediate neighbor to the east, Kevin Truan, testified as follows regarding his
    family‟s desire to see the Harris property improved and developed:
    Q. Okay. Let me show you what‟s been previously identified
    as Exhibit Number 33 and ask you what that document is and
    what that document memorializes.
    A. This is an agreement between my wife and I and the
    development company that said that we would be happy with
    that land being developed there on these conditions. We are
    still happy with that.
    Q. In regard to the conditions, most of the conditions address
    the buffer that ‒ improvement of the buffer; is that true?
    23
    A. Yes, sir.
    Q. In regard to the present buffer that is there, is the buffer
    that is there to your liking? Is it kept or unkept?
    A. It‟s unkept, and there‟s some people living there. Some
    street people live in that area right now. We‟d be glad to be
    rid of that.
    Q. So is it your testimony to the Court that the current buffer
    has actually attracted vagrants or hobos?
    A. Yes. There‟s several signs of them and a lot of empty
    drink containers.
    Q. And is that ‒ in the current condition of the buffer as it is,
    is that something that you would consider to be a negative
    factor to your home, to the safety of your home?
    A. Yes, sir.
    Q. What we‟re proposing, obviously, is also a buffer that
    would be along Gibbs Drive. Do you recall that?
    A. Yes.
    *        *     *
    Q. And you‟ve also asked that we put evergreens into what
    would be a new, more polished buffer?
    A. Yes.
    Q. And the new and better buffer would be an enhancement
    to your property and also something that would provide safety
    for your family?
    A. Yes. It would be a fence and a row of trees, so it would be
    very clear, attractive demarcation.
    24
    Q. In regard to the fence, you want an eight-foot privacy
    fence made of cedar wood?
    A. Yes, sir.
    Q. And you wanted it tapered at the end where it would be six
    feet tall at the end?
    A. Yes, sir.
    Q. Therefore, if we do all the things that you‟ve indicated on
    Exhibit 33, you would be, again, in your words, happy for the
    Harris lots to be developed commercially?
    A. Yes, sir.
    Q. In fact, you think that commercial development would
    actually be a plus for your house, and it would create an
    absolute demarcation and actually an improvement of the
    buffer and getting rid of any of the vagrants that are attracted
    to that area?
    A. Yes, sir. We feel the lot is not really attractive the way it
    is right now.
    The City of Knoxville recently developed the Gibbs Drive entrance off of
    Broadway, where the Harris and Whaley properties are situated, to construct two
    adjacent-to-one another, grassy medians separating westbound and eastbound traffic.
    According to Richard Smith, the new development makes it practically impossible to get
    a curb cut from the front Harris lot, so there could not be a driveway onto Gibbs from her
    lot. James Smith testified that Smith-Lindsey “absolutely would not have a curb cut to
    affect Gibbs Drive,” and that he could “represent to this Court and these people that [he]
    will under no circumstances allow a curb cut on Gibbs Drive.” The development plan
    provides for additional landscaping that would provide a separating barrier between the
    Harris lots and Gibbs Drive, a concession that we hold is binding on the plaintiffs under
    the circumstances of this case. Consequently, there is no evidence that commercially
    developing the Harris property would adversely impact traffic in the neighborhood.
    Fourth, the neighborhood residents have acquiesced in commercial activity in
    violation of the “residential purposes only” covenant on Harris’ property itself for more
    than thirty years. It is undisputed that Harris has rented the lots each Christmas season
    25
    since the 1980s for the purpose of selling Christmas trees and wreaths. See Exhibit 15.
    The exhibit shows numerous cut evergreen trees in stands along North Broadway; lights
    strung from temporary poles; several trucks and a camper-trailer parked on the property.
    A portable toilet is shown on another photograph in the record. This activity is without
    question purely commercial. It cannot be argued that it is “incidental” to the residential
    use of the property, because there is no residence on the lots and there never has been a
    residence there. Although it is seasonal, it is not insignificant. Moreover, it is open,
    obvious, and cannot be missed by anyone entering the Gibbs Drive neighborhood from
    North Broadway. All seven neighbors who testified stated that they were aware of the
    Christmas tree sales each year, and none had ever objected, or knew of any neighborhood
    objections. Furthermore, Whaley testified that since the Chick-fil-A opened, its
    employees had been parking their cars on the Harris lots:
    Q. Let me hand you two photographs and ask if you can
    identify these, Mr. Whaley.
    A. That‟s the new Chick-fil-A.
    Q. Is that the view from your front yard or front porch?
    A. This one here is my view.
    Q. All right.
    A. Looking across Ms. Harris‟s lot over to the Chick-fil-A.
    And this view is from across the street.
    THE COURT: I‟m pointing at this empty field with a bunch
    of cars parked in it. What is that? Is that regularly used as a
    parking lot?
    A. No. They‟re so busy, they‟re using Ms. Harris‟s lot to park
    employees cars on. That‟s what these cars are.
    THE COURT: Okay.
    *        *    *
    Q. How long have they been parking cars on Ms. Harris‟s lot
    there?
    26
    A. Ever since they opened.
    Q. And when was that?
    A. It‟s been open about five months.
    The Restatement (Third) of Property (Servitudes) § 7.10 provides as follows in
    pertinent part:
    (1) When a change has taken place since the creation of a
    servitude that makes it impossible as a practical matter to
    accomplish the purpose for which the servitude was created, a
    court may modify the servitude to permit the purpose to be
    accomplished. If modification is not practicable, or would
    not be effective, a court may terminate the servitude. . . .
    2) If the purpose of a servitude can be accomplished, but
    because of changed conditions the servient estate is no longer
    suitable for uses permitted by the servitude, a court may
    modify the servitude to permit other uses under conditions
    designed to preserve the benefits of the original servitude.
    We agree with the trial court that the purpose of the servitudes or restrictive covenants
    “was the creation and preservation of a residential neighborhood, and to all appearances
    that is exactly what the restrictions have achieved.” This Court, like the trial court, is
    concerned with preserving the benefits of the original servitude, and preserving the
    residential character of the historic Gibbs Drive neighborhood. The servient estate ‒ the
    Harris property ‒ is no longer suitable for uses permitted by the servitude. The
    subdivision residents have for many years acquiesced in violations of the restrictions with
    respect to the Harris lots, i.e., significant purely commercial activities, that have regularly
    occurred on the Harris property. We therefore hold that justice and equity require that the
    servitude on the Harris property be modified to remove the “residential purposes only”
    restriction and the requirement “that houses erected thereon shall face on [Gibbs Drive]6,”
    but we add a restriction that no curb cut shall be created on the property for vehicular
    access to Gibbs Drive. Our decree is also subject to the Truan/plaintiffs agreement as
    reflected in Exhibit 33.
    6
    While it is highly unlikely that a “house” will ever be built on the Harris lots, we have cancelled
    this restriction and thereby rendered it unenforceable as to the Harris lots lest it be argued in the future
    that this restriction should be broadly construed so as to make it applicable to “structures” generally.
    27
    This case presents the confluence of many and varied factors, as outlined above,
    leading to our conclusion with respect to the lifting of the restrictions on the Harris lots.
    It would be a mistake to construe our holding broadly.
    The Whaley property is very different. It is improved with one of the largest and,
    arguably, nicest houses in the neighborhood. Quite unlike the Harris lots, it thus
    contributes to the residential character of the subdivision as it is presently used.
    Moreover, Whaley purchased his property for $235,000 in 2001, in contrast to Harris,
    who inherited hers in 1978. Nearly all of the expert testimony proffered by Richard
    Smith pertained only to the Harris property. His only testimony regarding the Whaley
    property was his statement that “I dare say you wouldn‟t sell” any property fronting
    North Broadway “as a residential property.” At the closing of trial, the trial court did not
    exactly credit this testimony:
    THE COURT: . . . I‟m struck by two aspects of Mr. Whaley‟s
    case. One, while the brand names of the retail development
    that exists around that house have changed somewhat
    between 2001 and now, the fact is, when he bought that
    house, he bought it knowing that it was surrounded by
    commercial development. And that has not changed since
    1991.
    MR. SEYMOUR: The mass and size of it certainly has, your
    Honor.
    THE COURT: But is it seriously arguable that the house is
    significantly less usable for residence purposes today than it
    was in 2001 when he purchased it?
    MR. SEYMOUR: I think so. And Mr. Whaley can use it for
    residential purposes.
    THE COURT: That‟s the other aspect I find incongruous, is
    the idea of arguing that he‟s living in a house that‟s unsuitable
    for residential purposes.
    MR. SEYMOUR: The problem is it is not marketable for
    residential purposes.
    THE COURT: Not at half a million dollars, certainly. Could
    it be marketable at a lesser price? Does the fact that you
    28
    don‟t get the highest and best use possible out of a piece of
    property necessarily mean that it has no use as a property?
    MR. SEYMOUR: It has use for Mr. Whaley, but the proof is
    uncontradicted that it cannot be marketed for residential
    purposes.
    THE COURT: The proof was he listed it for $550,000.00 and
    nobody bought it.
    MR. SEYMOUR: The proof from Mr. Smith is that these
    properties are unmarketable.
    THE COURT: Mr. Smith basically was talking about the
    Harris property.
    MR. SEYMOUR: But he said any property along Broadway
    from Sharp‟s Ridge north is unmarketable as residential
    property. That was his testimony.
    THE COURT: I suppose.
    *        *   *
    THE COURT: Where is the inequity to Mr. Whaley?
    MR. SEYMOUR: He cannot sell his house.
    THE COURT: But he bought it knowing that. He bought
    with a Target across the street, with a Nixon‟s Deli on one
    side, and with some other development on the other side. He
    bought it that way.
    MR. SEYMOUR: Under that reasoning, we‟re going to leave
    these restrictions on Mr. Whaley and Ms. Harris?
    THE COURT: I‟m not saying Ms. Harris. Ms. Harris is in a
    substantially different position. But Mr. Whaley bought his
    property knowing that it was facing Broadway, which even in
    2001 was a heavily traveled arterial street upon which most
    residential housing had disappeared. He bought it knowing
    29
    that. If you‟re going to appeal to equity, other than the fact
    that he could make more money selling it for commercial
    uses, where is the inequity to him?
    MR. SEYMOUR: He can‟t even recoup his money out of the
    house.
    THE COURT: We‟ve had no evidence on that. And if you
    are telling me he put that house on the market for
    $235,000.00 it wouldn‟t be bought, I‟d be pretty tempted,
    other than the fact that I‟m sitting here hearing this case, to
    buy it myself.
    As is shown by the above, the trial court recognized the differences between the Whaley
    and Harris properties. We affirm the decision of the trial court refusing to eliminate or
    modify the subject restrictive covenant on Whaley‟s property.
    V.
    The judgment of the trial court with respect to the Harris property is reversed with
    restrictions added. The judgment of the trial court with respect to the property of Mr.
    Whaley is affirmed. Costs on appeal are assessed one-half to the appellees, Amanda B.
    Aldmon, et al., and one-half to the appellant, Robert A. Whaley. The case is remanded to
    the trial court for the entry of a judgment there consistent with this opinion.
    _____________________________________
    CHARLES D. SUSANO, JR., CHIEF JUDGE
    30