Mueller v. Schier , 189 Wis. 70 ( 1926 )

The following opinion was filed November 17, 1925:

Jones, J.

The respective counsel have filed very elaborate briefs which have been quite helpful, but there does not appear in the voluminous record any such amount of conflicting evidence as might be expected. Some claim is made by appellants’ counsel that defendants had no such notice of any restrictions as precluded them from building the porch in the manner they did. The defendants obtained an abstract showing the state of the title and the restrictive covenants in the chain of title. Rudolph Schier, before constructing- the building, consulted his attorney, not informing him of the nature of the porch or showing him the specifications. He received a favorable opinion, but was told in significant language that it was not necessarily a court opinion. Some argument on this point is based on the fact that the immediate deed to the defendants made no mention of any restrictions. We do not regard this as important. The deeds in the chain of title in very plain language stated the restrictions. They had been recorded, and defendants thus had constructive notice by which they were bound.

It is also urged by the appellants’ counsel that the plaintiff was estopped by failing to make timely objections and that the city building inspector made no objections. Mrs. Mueller testified that while her husband was living he had charge of matters; that she and her husband were absent on a vacation in August; that she at first supposed that the defendants were constructing a terrace and not a porch; that when she found the pillars were up she consulted her attorney. We see no reason for reversing the finding of the court on this subject.

It is argued by the appellants’ counsel that the testimony showed a lack of uniformity in the building line, and that other buildings had been constructed in the same block in which the restriction had not been observed. Ah examination of the evidence shows that such deviations had been few in number, and very slight and were unknown to the plaintiff. If defendants had bought their lots and built their residence' knowing that the restrictions were generally disregarded in their neighborhood, if, to their knowledge, business buildings had been erected in their vicinity materially encroaching on the strip in question, if, in short, they could see that the whole situation had been so changed as to result in abandonment of the restrictions, a very different question would be presented. In such a case a court of equity might well refuse to grant an injunction which would be unjust to others. In this connection it is argued by appellants’ counsel that it would be unjust to the defendants to require them to take down and remodel the porch, but on this subject there was direct conflict in the testimony of the architects, and we consider that the finding of the court was supported by the evidence. Moreover, the testimony shows that with full notice of the risk the defendants were persistent and obstinate in their determination to build upon the restricted area. It is well settled that when restrictive covenants are entered into with the design of carrying out a general scheme for. the improvement and development of property they are enforceable by any grantee against any other grantee having notice. In such a case there is a consideration and mutuality of covenant binding upon each. Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701; Roberts v. Gerber, 187 Wis. 282, 202 N. W. 701; 27 Ruling Case Law, 764, and cases cited. This rule is conceded by the appellants’ counsel, but they claim that there was no1 proof of any such general plan or scheme; that although the common grantor owned a large tract of unplatted land north and south of Pabst avenue, only two deeds from such grantor were introduced to show the scheme of development. It is true the deeds to other vendees were not offered, but there is found in the answer the following admission:

“And as these defendants are informed and believe, the said Matthieson Land Company entered into similar covenants and agreements with all other purchasers of the dis^ tinct and separate parcels of land sold and purchased and abutting on said proposed park, all of which covenants and agreements were contained in the respective deeds executed and delivered- by said land company to the respective purchasers and upon like considerations, and that all of the said parcels were sold and conveyed by said company by metes and bounds and not by reference to any recorded plat or subdivision.”

After such an admission there was no reason for incumbering the record by proof of the deeds to other grantees.

It' is earnestly contended by counsel for the defendants that the original scheme for the development of the property as a high-class residence neighborhood with building restrictions was wholly abandoned as shown by certain deeds, mentioned in the findings, from the common grantor and the predecessors of the plaintiff and defendants and many other lotowners, to- the city of -Milwaukee. One of these was a quitclaim deed signed by the land company and many other lotowners of the 100-foot strip “for highway purposes.” Another was by the land company, and dedicated and quitclaimed to the city of Milwaukee an easement in the strip in question to hold the easement for street and boulevard purposes so long as it shall be used for such purposes. Two other deeds containing similar language were received in evidence. The land company in conformity with its covenant conveyed and dedicated the 100-foot strip to all owners on the east and west side thereof.- The habendum clause was in part as follows:

“To have and to hold the same as a park, driveway and walk, in common with all the owners of lands abutting on said parkway, the same to remain perpetually as a private common park, containing a common carriage drive and walk, the same to be not subject to partition or any incident inconsistent with this purpose.”

On this language and on the deeds to the city of Milwaukee counsel for the defendants greatly rely to sustain the theory of abandonment. It is argued that if the defendant does not get the benefit of seclusion and a private park he should not be subjected to the burden of a restriction. It is a familiar rule in the construction of deeds that “the intention of the parties is to be ascertained by considering all the provisions of the deed, as well as the situation of the parties, and then to give effect to such intention if practicable, when not contrary to law.” 2 Devlin, Real Estate (3d ed.) p. 1508.

“The language in which the deed is expressed controls the construction, but, if necessary, consideration can be given to the circumstances leading up to its execution; the object always to be kept in view, however, is to give its language such an interpretation as will effectuate the intention which the parties may be presumed to have had in the use of the words, wh.erever this can be accomplished without straining the language beyond its fair import.” 2 Dev-lin, Real Estate (3d ed.) p. 1537.

The parties in this case were dealing with lots in a tract of land near enough to Milwaukee so that it became a part of the city. It was contemplated that high-class residences would be built on lots of moderate width on both sides of the 100-foot strip; that there was to be within this strip a parkway and driveway. It is not designated as a private driveway.' It seems very plain to us that this driveway was not intended to be a cul-de-sac or private lane for the use merely of abutting owners, but that if was intended to be a public street. Whether or not the words above referred to and relied on by the appellants were well chosen, they are not inconsistent with the intention that there should be a public driveway with an attractive parkway on either side.

It is contended that the deeds to the city of Milwaukee conveyed the fee to the 100-foot strip. In one of the deeds referred to, as already stated, the conveyance was expressly for highway purposes; in the others of an easement only. So long as the conveyances were for the purpose of a highway the city took only an easement.

“By a long line of decisions in this state with reference to streets and roads it has become the settled law of this state that in the case of a road or street, whether acquired by condemnation, conveyance, by common-law dedication or by statutory dedication, the city, town, or village takes only an easement for highway purposes, while the fee is held by the abutting landowner. This brings all roads and streets within an uniform rule; but whether the ruling was originally correct as regards statutory dedication by plat under the statutes quoted is doubtful. However this may be, the rule has been so often applied and is of such long standing that it has become a rule of property with reference to roads and streets and cannot now be departed from.” Thorndike v. Milwaukee A. Co. 143 Wis. 1, 126 N. W. 881; and see cases cited therein.

Subject to the easement the abutting owners remained owners to the center of the street, having all the rights conferred by sec. 80.47 of the Statutes. There is no language in the deeds to the city from which it can be inferred that the abutting owners intended to abandon their right to insist on uniformity in the building line. From the beginning it was the evident purpose of all concerned that the property conveyed should be maintained as a high-grade residence section. It was quite as important that there should be some uniformity in the building line if the 100-foot strip should become a boulevard, as if it should become the kind of nondescript passageway for which the defendants’ counsel contended. Some claim is made by counsel for the appellants that the amendment to the state constitution, art. XI, sec. 3a, changes the long settled rule and gives to the city of Milwaukee the absolute ownership of the strip in question. We do not consider that the provision has any application to the facts of this case.

It is one of the assignments of error that the court made no finding in relation to the tract south of Pabst avenue and the building line and restrictions in that block. It is true that no such findings were made, although testimony was received on this subject and showed some rather unimportant deviations from the building line in that block. But they were not such encroachments on the restricted area as materially affected plaintiff’s property. If the plaintiff had the right to insist as against the defendants that uniformity in the building line should be preserved, we do not think that right was lost or abandoned by failing to protest or engage in lawsuits on account of such deviations as were made in another block. Counsel for the appellants cite many cases to the general rule which we recognize, that restrictive covenants are not favored in the law and that doubts as to the construction of restrictive clauses in deeds • are to be resolved in favor of natural rights and against the restrictions. But it is well settled that when the intention is plainly shown in the writings to be construed, restrictions of the kind before us will be enforced in equity unless the circumstances are such that the enforcement would be inequitable. In various respects this case is governed by the decision in Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701, and the rules there declared need not be repeated here. The question when a person may be enjoined from projecting a porch out over an area which has been restricted by covenants is here for the first time, but it is a subject that has often been discussed in other states. No rule can be laid down as an absolute guide. The decision -in each case must be governed by its own facts. In some cases, as where the complaining party has allowed expensive improvements to be made without objection, or where there have been such encroachments in the vicinity as to wholly change the sitúation and show that the original plan has been abandoned, or when there is grave doubt as to the meaning of the agreement relied on, relief has been denied. In the instant case we find none of these reasons for declining to give relief. The intention of the parties when these lots were sold was too plain to admit of any doubt. The plaintiff and the defendants built houses costing from $18,000 to $20,000, and the plaintiff at least relied on the ‘covenant. Whether the defendants relied on it or not, they were mutually bound by the restrictive covenant. They ignored it and projected this porch, an integral part of their building, well out over the restricted area. If this theory were to prevail they could have extended it much further. Defendants’ counsel argue that the encroachment could cause no damage to the plaintiff’s property, but the court found against them on this proposition and we concur in that view.,, It seems unnecessary to review the decisions of other states on the general subject. ' They will be found collected in a note in 52 L. R. A. n. s. 1047.

In support of the motion there was a brief by Lenicheck, Boesel & Wickhem, attorneys, and F. J. Lenicheck, of counsel, all of Milwaukee. In opposition thereto there was a brief by Edmund Gause-witz and John H. Schlintz, both of Milwaukee.

By the Court. — Judgment affirmed.