Johnston v. Parkin

The parties to this suit own lots in the Francis A. Brodbeck, Jr., Park Addition to Cuyahoga Falls, which allotment contains 380 lots; defendant's lot being No. 272 of said allotment.

It is alleged by the plaintiffs, Percy Johnston and Waldermer R. Stone, and admitted by the defendant, Viola E. Parkin, that she has started and is about to erect an apartment house upon her said lot, to contain four suites or apartments, and that each one is to be separate and distinct. It is also admitted that 80 single dwelling houses have been erected in said allotment.

It is claimed by the plaintiffs that the erection of said building by the defendant will be in violation of one of the restrictions contained in defendant's deed, which restriction is common to all of the deeds to all of the lots contained in said subdivision, and of which restriction the defendant and all of the other lot owners in said allotment had full and due notice, said restriction being the following, to wit:

"3rd. That these premises be used for residence purposes only; that no temporary dwelling of any kind shall be erected thereon and that any residence erected on lots fronting on Broad St. shall cost and be reasonably worth $5500 and on any other street they shall cost and be reasonably worth not less than $4500, and only one residence shall be erected on any lot and such residence must face the street on which said lot faces; that any and all fences shall be of neat construction and not over 3 1/2 feet high except at the rear of said lot, and that no pig pen or obnoxious or unsightly out-building shall be erected or maintained."

We have had cited to us, by the attorneys in this case, the decisions in the cases of Hunt v. Held, 90 Ohio St. 280,107 N.E. 765, L.R.A., 1915B, 543, Ann. Cas., 1915C, 1051; Arnoff v.Williams, 94 Ohio St. 145, 113 N.E. 661; Arnoff v. Chase,101 Ohio St. 331, 128 N.E. 319; and Hitz v. Flower, 104 Ohio St. 47, 135 N.E. 450. The plaintiffs' attorney relies upon Arnoff v.Chase, and the defendant's attorneys rely upon the other cases herein cited.

From an examination of these cases and the facts in the instant case we are unanimously of the opinion that the case of Arnoff v.Chase, supra, controls us in arriving at a proper decision in this case. In that case the court in its opinion construes a deed containing this restriction: "Said party of the second part, her heirs and assigns, hereby agree not to erect or cause to be erected any building or structure, or part thereof, on said lots within 40 feet of the north line of said lot, * * * no house to be erected under a cost of Three Thousand ($3,000.00) Dollars * * * and no shingle roof to be used; one house only on each lot; all lots are sold for residence purposes only * * *."

And, after discussing Arnoff v. Williams and Hunt v. Held,supra, the court says, at page 334 of 101 Ohio State, 128 N.E. 320: "However, even if we could confine our view within the narrow limits of the words themselves, the instant case could not be disposed of upon the authority of the cases cited, since the word ``house,' though in some connections used as synonymous with ``building,' is unquestionably used, and commonly, both in literature and in common speech, as the equivalent of that sort of a home technically known as a single family residence. The latter interpretation gains in force when it is observed that the term ``building' or ``structure' is used when it is desired to control the place of construction, and the phrase ``for residence purposes' when the general character of the occupancy is in question. The further and distinct limitation of each lot owner to ``one house only' was evidently inserted for another purpose. It would be hyper-technical to interpret that purpose as satisfied by the construction of as many abodes as can be arranged vertically or horizontally under a common roof."

By the foregoing language, the court said, in referring to deed restrictions, that the words "house" and "residence," as used in common speech, are the equivalent of the home known as a residence occupied by one family.

We are satisfied that the original allotter, when he used the expression "only one residence shall be erected on any lot," intended that any residence building erected thereon should be used as a one-family residence, as the phrase is commonly used and understood by people who buy and sell real estate; and when the defendant attempts to erect a building on her lot for the purpose of having four single residences in one building she violates the plain and ordinary meaning which should be and is given to the word "residence," and her attempt is as much a violation of the restrictions as though she were attempting to erect four single residences upon said lot — which right, of course, the defendant would not claim.

We are therefore of the opinion that the plaintiffs are entitled to the relief asked, and a permanent injunction is issued, preventing the said defendant from erecting the building that she admits she intends to erect.

Injunction allowed.

WASHBURN, P.J., and FUNK, J., concur.