Sterling Cotton Mills, Inc. v. Vaughan

212 S.E.2d 199 (1975) 24 N.C. App. 696

STERLING COTTON MILLS, INC., et al.
v.
Linwood H. VAUGHAN et al.

No. 749DC939.

Court of Appeals of North Carolina.

March 5, 1975.

Royster & Royster by T. S. Royster, Oxford, for plaintiff appellees.

Aubrey S. Tomlinson, Jr., Louisburg, for defendants appellants.

MARTIN, Judge.

The defendants' only exception is to the signing of the judgment for that the conclusions of law are not supported by the facts.

Defendants first contend that conditions within the area have been materially altered so as to change the character and environment of the neighborhood.

"When persons desiring to become home owners purchase property in a subdivision protected by certain desirable restrictive covenants, the security of such covenants ought not to be destroyed by slight departures from the original plan, and valid restrictions appearing in all the deeds for lots in such subdivision should not be eliminated and wiped out because of immaterial violations of such restrictions. . . . ``However, it is equally true that, if the character of the community has been changed by. . . causes resulting in a substantial subversion or fundamental change in the essential character of the property, then, in such cases, equity, will not rigidly enforce the restriction.'" McLeskey v. Heinlein, 200 N.C. 290, 156 S.E. 489 (1931).

"It is generally held that the encroachment of business and changes due thereto, in order to undo the force and vitality of the restrictions, must take place within the covenanted area." Tull v. Doctors Building, Inc., 255 N.C. 23, 120 S.E.2d 817 (1961) (quoting Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471).

Doubtless, the use of such dwellings for the purposes described were violative of the restrictions imposed thereon. However, not every violation of a restrictive agreement entitles an aggrieved party to equitable relief. Each case depends on its own circumstances. "The Court said in Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545, 553: ``No hard and fast rule can be laid down as to when changed conditions have defeated the purpose of restrictions, but it can be safely asserted the changes must be so radical as practically to destroy the essential objects and purposes of the agreement.'" Tull v. Doctors Building, Inc., supra.

We are of the opinion, and so hold, that the evidence does not show that the aforementioned use of the four lots is such a radical or fundamental change or substantial subversion as practically to destroy the essential objects and purposes of the restrictive agreement as to warrant the removal of the residential restrictions.

Defendants next argue that the the plaintiffs have acquiesced in the operation of the business operated by the defendant Vaughan and are now estopped to complain.

"Nor should a property owner be held to have waived his rights, and to have abandoned the protection conferred upon him by such covenants, by reason of disconnected and immaterial violations of the restrictions in the conveyances. This idea is expressed in Ward v. Prospect Manor Corp., 188 Wis. 534, 206 N.W. 856: ``It is now generally recognized by the overwhelming weight of authority in this country that an individual lot owner is not under penalty of waiving his right to the enforcement of a restrictive covenant by his failure to take notice of such violations as do not affect him.'" Starkey v. Gardner, 194 N.C. 74, 138 S.E. 408 (1927).

The fact that four residences were used for non-residential purposes and not objected to by plaintiffs or other residents of the subdivision should not, in equity, be held to have estopped plaintiffs from asserting their rights against the subsequent substantial violation by the defendants. In consideration of all the evidence, we hold that the failure of the plaintiffs or other residents of the subdivision to object to the aforementioned uses for non-residential purposes does not constitute waiver or acquiescence or estoppel so as to deprive them of protection of said restrictive covenant.

We have taken into account the hardship to defendants resulting from enforcement of the restrictive covenant, nevertheless, it is our opinion that the trial court's conclusions of law were supported by the facts as stipulated.

Affirmed.

VAUGHN and ARNOLD, JJ., concur.