Moore v. Stevens

The covenant in the deed of conveyance, which is made the basis of the injunctive order in this case, is set forth in the majority opinion. It was contained in a deed from Tampa Land Company and H. C. Draper and Blanche Draper, his wife, to Mary E. J. Lester, dated November 1, 1919, who, with her husband, conveyed to Frank Bentley in September, 1921, and by him conveyed to Homer Moore in March, 1922. The last two deeds do not contain the covenant as recited in the deed first above mentioned but they do contain the following clause, which immediately follows the description of the property:

"It is understood and agreed by and between the parties hereto that this deed is made subject to the restrictions as to the use of said land as provided in deed bearing date November 1, 1919, to Mary E. J. Lester from Tampa Land Company, a corporation, and H. C. Draper and Blanche Draper, his wife, as said deed appears recorded in Deed Book 299 at page 365 of the Public Records of Hillsborough County, Florida."

The lot described was Lot one (1), block two (2) of Lingerlong Subdivision as per map thereof recorded in Plat Book 8, page 63, Public Records Hillsborough County, Florida.

In April, 1922, the appellee acquired by deed from Tampa Land Company and H. C. Draper and Blanche Draper, his wife, lot six (6) of block two (2) in the same subdivision. The deed contained the same covenant as set forth in the majority opinion except that the residence which the owner might erect thereon should face "west" instead of"east."

A plat of Lingerlong Subdivision is attached to the bill as Exhibit "A." It is entitled "Lingerlong a resubdivision of blocks 2, 4, 5, 8, 9 and lots 1, 2, 6, 7, 8 of block 2, lots 1, 2, 5, 6, 7, 8 of block 6 of Fortuna Subdivision as recorded on page 17, Book 3, corrected plat, records of Hillsborough County."

This plat contains notice of no restrictions of any kind whatsoever applicable to the blocks or lots designated thereon.

Block two (2), indicated upon the plat contains in addition to the lots enumerated in the title, lots numbered 3, 4, 5, and two large unnumbered tracts apparently equivalent to the total area of five lots in that block. Running north and south through block two (2) is an alley fifteen feet wide extending from Inman Avenue on the north to Bristol Avenue on the south. Lot six (6) is an inside lot located upon the west side of the alley and fronting west on Packwood Avenue. Lot one (1) is a corner lot located upon the east side of the alley fronting east on Rome Avenue and north on Inman Avenue.

The bill alleges that the appellant, Moore, "before acquiring the fee simple title to said property from his immediate grantor, erected on said lot one (1) of block two (2) of said subdivision, a building in violation of the restrictive covenants contained in the deed from the said Tampa Land Company and H. C. Draper and Blanche Draper, his wife, subject to which he acquired and now holds said lot and is using said building and is intending to continue the use of the same in violation of the restrictive covenants under which he holds said property," etc.

It is alleged that the building so erected and maintained is not a residence within the meaning of the said restrictive covenants; that the use of said property for the purposes aforesaid constitutes a use of the property for other than residence purposes only, within the meaning of said restrictive covenants. That the erection and use of the building by the defendant as a vocal studio greatly depreciates the value of complainant's lot for the reason that no one would pay as much for her lot and the costly residence which she had erected thereon by reason of the fact that the defendant's building is designed, used and maintained as a vocal studio in violation of the covenants and restrictions aforesaid.

The prayer was that the defendant be required to remodel the building and that he be enjoined from using it as a vocal studio or as a building for a purpose other than residential, or for any other purpose in violation of the restrictive covenants.

The answer avers that on lots two and three of block two (2) three houses have been erected and are now used for residence purposes; that they are occupied by and constitute the homes of different families, and that the complainant has acquiesced in the breach of the restrictive covenant in that regard. That in conveyances of other lots "in subsequent deeds" in many instances the "restrictive covenants have been dropped" and have not been insisted upon by the purchasers but on the contrary that breach thereof has been acqiuesced in generally.

The answer admits that the defendant, Moore, is a teacher of vocal music and gives about forty-five vocal lessons of thirty minutes each in his home each week. That it is customary to give such lessons in the home of the teacher except where such lessons are given in colleges and universities. The answer avers that the defendant and his wife use the first floor of the building for family purposes, often for entertaining friends, and denies that it has any special design or construction to fit it for a vocal studio only.

Testimony was taken and the decree rendered was as follows:

"ORDERED, ADJUDGED and DECREED as follows: That the said defendant, Homer Moore, his agents, servants and employees be forever hereafter perpetually enjoined and they are hereby enjoined to desist and refrain from all use of the premises described in the bill of complaint, to-wit: Lot one (1) of block two (2) of Lingerlong Subdivision, as per plat thereof recorded in Plat Book 8, at page 63, in the office of the Clerk of the Circuit Court of Hillsborough County, Florida, or any portion of the same, and from appropriating or applying the same to the purposes of a vocal studio, or any similar use, by whatever name called or known, and from all use or application of said lot, or the buildings thereon, or any portion of the same for any purpose whatsoever except that of 'residence purposes only,' and that in the ordinary common acceptation of that term."

The evidence establishes the allegation of the bill that the defendant uses his house, occupied by him as a home for himself and wife, for purposes of a vocal studio in which he teaches vocal music to pupils who come there for that purpose and that he gives about forty-five lessons of thirty minutes each per week for which he charges a fee and that work constitutes the principal income to him from his labors. The evidence shows that it is customary for teachers of vocal music to give lessons in their homes.

The clause contained in the covenant "that the property hereby conveyed is to be used for residence purposes only" is the one which the decree holds has been violated.

To determine the accuracy of that decision it is necessary to ascertain the exact meaning of these words in the connection in which they are used in order to ascertain the intention of the grantors and grantees named in the deeds conveying the lots in the resubdivision known as "Lingerlong," because it is the intention of the parties as expressed by the words contained in the covenant to which effect must be given if it is to be given any effect at all.

It has been said that perhaps no man has ever possessed a more acute and perfect intellect than that of Blaise Pascal. That his clearness of expression and perfection of reason were unexcelled. He said that the true method in reasoning which furnishes demonstrations of the highest excellence consists in observing two rules, viz.: Define all the terms and prove all the propositions. It is an elementary law of thought, a basic rule of correct reasoning, that the terms of a proposition should have a definite meaning both in intention and extension and that meaning shall be consistently held and recognized throughout the entire argument. If that rule is disregarded it is not possible to arrive certainly at a correct judgment.

I agree that the word "only" in the quoted phrase contained in the covenant qualifies the verb "to be used." so that it conveys the same meaning as if the phrase had been "is to be used only for residence purposes" or to be used for residence purposes and nothing else.

The word "purposes" requires some definition in the light of the covenant under consideration. The meaning of the word is: "That which a person sets before himself as an object to be attained"; the end or aim to be kept in view in any "plan," "design," "intention." See Webster's International Dictionary (1925 Ed.).

The phrase would have been complete if the word "purposes" had been omitted so that it would have read as follows: The property hereby conveyed is to be used for residence only. The word "purposes" adds nothing to the meaning of the sentence. It is superfluous and confusing.

The word "residence" means: "The place where one actually lives or has his home; a person's dwelling place or place of habitation; an abode." Webster's International Dictionary (Same Ed.).

To say that a residence is a place where one dwells in permanent abode is merely to say that a residence is a residence, for abode means residence. The word "permanent" has no place in the definition because one's residence or abode may be temporary. Therefore the phrase means: the property hereby conveyed is to be used only as a place where one lives or has his home or dwelling place, habitation or abode.

There is no allegation in the bill that the use of the home by the defendant as a vocal studio constitutes a nuisance; nor is the allegation that such use of the building "greatly annoys the residents of the vicinity in which the studio is located" established by any evidence in the case, but that such use especially annoys the complainant is shown by her own testimony. Nor is there any allegation in the bill that the house was erected for "business purposes."

Therefore, whether the use of the house as a vocal studio by the defendant constitutes a nuisance is a subject not related and has no bearing whatsoever upon the decree rendered, because as it is not in evidence that such use constitutes a nuisance the Chancellor could not have so considered it; such use not being per se a nuisance.

There is some evidence of a general nature that the value of a lot in a restricted subdivision would be "hurt," in the estimation of the witness, if upon a lot in close proximity a building should be erected "for business purposes from the conduct of which business certain objectionable noises emanated at all times during the conduct of the business."

That evidence was erroneously admitted by the chancellor because it was so general in character and so inapplicable to the facts of this case and allegations of the bill as to be worthless for any specific purpose and misleading in a high degree in so far as it assumed that the house was built for business purposes and that the sounds emanating from it were objectionable noises.

The decree therefore cannot logically rest upon the consideration that the house was erected for business purposes or that the sounds emanating from it constituted an annoyance to people living in the vicinity or that the use to which the owner put it by teaching vocal music in it resulted in the depreciation of the value of property in the resubdivision or that such use constituted a nuisance.

It follows that the sole question presented by this record is whether the covenant contained in the words "The property hereby conveyed is to be used for residence purposes only" was violated by the defendant who taught vocal music for a consideration paid to him by his pupils in the house erected by him as a residence upon the property?

The rule is universally recognized and enforced in the courts that restrictive covenants limiting the use of property are to be strictly construed against the restriction and all doubts should be resolved in favor of the reasonable use of the property and against the restriction. This rule is founded upon the elementary principle that restrictions upon a lawful use of property are against common right. They should therefore be so clear that by the acceptance of the deed which declares them the purchaser may reasonably be deemed to have understood and acceded to them. See Newberry v. Barkalow, 75 N.J. Eq. 128,71 Atl. Rep. 752; Fortesque v. Carroll, 76 N.J. Eq. 583,75 Atl. Rep. 923; Boylston v. Holmes, 276 Ill. 279, 114 N.E. Rep. 522; Curtis v. Rubin, 244 Ill. 88, 91 N.E. Rep. 84, 135 Am. St. Rep. 307; 22 Cyc. 866 (b).

The argument supporting the decree is: that the property could be used for residence only but the defendant used it also for teaching vocal music for a consideration, which is for a purpose other than "residence."

The argument is unsound because it is made to depend upon the greatly increased intensive meaning given by the court to the phrase "residence purposes only," in the above argument, is so greatly increased that it would preclude the extension of the term to the use of the property for any purpose whatsoever from which the owner derived a monetary or other valuable consideration.

Many instances of such use might be given but it would seem to be sufficient to mention one or two. An artist would be prohibited from fitting up a studio in his home for painting portraits or other paintings from Biblical or historical subjects for monetary consideration, or a sculptor from molding his clay or chiseling his marble into statues, a chemist from experimenting in his laboratory, a lawyer from briefing his cases, a physician from writing prescriptions or treating persons who came to his house for treatment or a seamstress from sewing for hire. If the element of pay for the particular activity is the obnoxious feature it follows that any one engaged in any of the above named vocations would come within the restriction.

Now the teaching of vocal music for hire cannot be said, in reason, to be peculiarly within the restriction while other vocations, like those mentioned above, are not.

Therefore all severally would be within the restriction if the phrase "residence purposes" is given the extremely limited and restrictive meaning of a "dwelling house where a person lives in settled abode."

I am of the opinion that such a limited and narrow meaning in extension of the phrase could not have been in the minds of the parties, either those who laid out the subdivision or those who sold and purchased the lots, because such a meaning would defeat the very purpose of the restrictive covenant, which was to give additional value to the property as a residential district.

It is apparent that if the meaning in intention of the phrase "residence purposes only" is as limited as that given to it in the majority opinion the term could be applied to any use whatsoever the owner might make of his property so long as he lived and had his home or abode upon the place. Which would lead inevitably to a conclusion different from that reached. I think that the intention meaning of the words "used only for residence" should be increased so that when the term is sought to be applied or extended to a given situation or condition that it would include any use of the property as does not destroy its character as residence property or which does not constitute a nuisance or such use as does not of itself operate to depreciate the value of adjacent or other property in the subdivision. Such was evidently the meaning which the parties placed upon the phrase because the covenant contains the following clause: "That no use shall be made of said property or any part thereof that would constitute a nuisance or injure the value of any neighboring lot." If the majority opinion is correct in the definition of the phrase "residence purposes only" it follows that the above clause is intended as a further limitation of the meaning of that phrase and was intended to embrace such a use of the property for residence only as might become a nuisance or injure the value of neighboring lots.

Such a construction of the covenant would destroy its meaning or make it impossible of comprehension, for in what way could use of property for residence purposes only become a nuisance or injure the value of neighboring lots? It seems reasonable that the latter clause of the covenant therefore was intended by the parties to extend the meaning of the clause relating to use for residence purposes.

To what extent the property may be used without destroying its character as residence property provided such use does not injure the value of other property, in each case must depend upon its own circumstances. No hard and fast definition, such as given in the majority opinion, can be given of the term "residence" which would not in many conceivable cases exclude a legitimate use of the property under the restrictive clause. The use must bring into existence some other fact which creates a nuisance or injures the value of other property in the resubdivision before the complainant may be said to be entitled to an injunction to restrain such use of the property.

Now there was no evidence that the defendant's use of the property was such as to create a nuisance or injure the value of neighboring lots, nor was there any evidence that his use of the house which he erected on the lot rendered the building any less a residence.

There is no language in the covenant requiring the use of the property to be "without appreciable annoyance, inconvenience or injury" to neighboring residents. To put such words into the covenant is to make a new and different contract for the parties.

It is not inconceivable that the use of a phonograph or radio set or the giving of dinner parties or dances or the use of the house for social gatherings or the meeting of church guilds might be an "annoyance" to some highly strung and supersensitive resident of the neighborhood, but such use of the house, while not necessarily a residence purpose, could not be said to be within the restriction.

I am therefore of the opinion that the decree should be reversed.