Higgins v. Hough, 195 N.C. 652 (1928)

May 23, 1928 · Supreme Court of North Carolina

195 N.C. 652

R. O. HIGGINS v. W. S. HOUGH.

(Filed 23 May, 1928.)

Deeds and Conveyances — Construction and Operation — Restrictions— Equity,

A restriction in a deed that only one dwelling-house be erected on the ■ lot of land conveyed will not be enforced when business and apartment houses have been erected in the locality, and the nature of the development has changed so that the value of the land would he greatly depreciated by the restriction, thus1 rendering the enforcement of the restriction inequitable or oppressive. Starkey v. Gardner, 194 N. C., 74, cited and applied.

Civil actioN before Harding, J., at April Special Term, 1928, of MeCKLENBuEG.

On 22 July, 1922, the Charlotte Consolidated Construction Company, conveyed a lot on East Morehead and Oriole avenues or streets to Z. V. Kendrick and wife. The land was divided into two lots. The plaintiff owns lot B fronting on Oriole Avenue and the defendant owns lot A at the intersection of Oriole Avenue and East Morehead Street. Both the plaintiff and the defendant derived the title from Kendrick. The deeds from Kendrick to the plaintiff and defendant contained among others the following restrictions: “The lots of land hereby conveyed shall be used for residential purposes only and not otherwise, and there shall not at any one time be more than one residence or dwelling-house on any one lot,” etc. Tbe defendant proposes to erect on bis lot an apartment bouse several stories in beigbt. Whereupon tbe plaintiff instituted tbe present action to restrain tbe defendant from so doing upon tbe ground that tbe construction of an apartment bouse would violate tbe restrictions contained in tbe deed. Tbe defendant contended tbat tbe restrictions were not enforceable because tbe character of tbe community bad been changed by tbe expansion of tbe city resulting in a fundamental change in tbe essential character of tbe property referred to.

Tbe controversy was submitted to tbe trial judge- who found tbat tbe restrictions bad been violated in many instances set out in bis findings and tbat in tbe development there Avere ■ gas stations, a woman’s club building, grocery stores, a large laundry building, a market, and apartment bouses, one large apartment bouse having been erected just across tbe street in front of tbe property in controversy and another contemplated on Oriole Street.

After setting out tbe various violations of tbe restrictions tbe court further finds as follows: “Tbe court further finds as a fact tbat tbe character of tbe community has been changed by tbe expansion of tbe city and tbe spread of industry and other causes resulting in a substantial subversion or fundamental change in tbe essential character of tbe property herein referred to. Tbat changed conditions resulting from tbe natural growth of tbe city bringing industry, traffic and apartment bouses, clubs, mosques, and churches into such close proximity to tbe restricted area or property herein described as to render it undesirable for tbe purpose to which it is restricted. Tbat violations of tbe restrictions have been so general as to indicate and in fact do indicate tbe purpose and intention on tbe part of tbe residents of tbe community to abandon tbe general scheme or purpose in this immediate section. . . . Tbe court further finds as a fact tbat it is inequitable and unjust to require tbe enforcement of tbe restrictions and tbat it is detrimental and injurious to tbe market value of tbe property, and if said restrictions are permitted to continue, tbat it will retard tbe advancement and upbuilding of tbe property for tbe purposes for which it can be best used.”

From tbe judgment so rendered plaintiff appealed.

Fred B. Helms for plaintiff.

B. A. Wellons for defendant.

Brogden, J.

There is no allegation and no finding of fact to the effect that the property in controversy was a part of a general plan or scheme. The trial judge found as a fact that by reason of the growth and expansion of the city the essential nature and character of the property has been changed. The record discloses ample evidence to support the findings of the trial judge. These findings of fact bring the case squarely within the principle announced by this Court in Starkey v. Gardner, 194 N. C., 74, 138 S. E., 408. In that ease it was said: “The weight of authority is to the effect that if substantial, radical and fundamental changes have taken place in a development protected by restrictive covenants that courts of equity will not enforce the restriction. The underlying reason is, we apprehend, that such changes destroy the uniformity of the plan and the equal protection of the .restriction.”

The authorities upon the subject are set out in the Starkey case and we deem it unnecessary to repeat them here.

Affirmed.