Huffman v. Johnson, 236 N.C. 225 (1952)

Sept. 24, 1952 · Supreme Court of North Carolina

236 N.C. 225

J. P. HUFFMAN and Wife FLORENCE HUFFMAN, J. E. DIVELBISS, JR., W. BRYAN CARTER, LEO FINKELSTEIN, R. M. BURAN, ROBERT E. HIPPS, C. T. JOHNSON, MRS. DICK BRIGGS, LEILA R. OGDEN, C. L. KELLOGG, MABEL C. WILSON and EMANUEL T. LINN, for Themselves and All Other Landowners Within LAKE VIEW PARK DEVELOPMENT Who May Come in and Make Themselves Parties Plaintiff, v. SARAH TAYLOR JOHNSON and Husband, ROBERT H. JOHNSON.

(Filed 24 September, 1952.)

Deeds § 16b—

Evidence tending to show that defendants rented out two rooms in their house after certain improvements or alterations had been made, but that the roomers had no kitchen facilities and took all of their meals at restaurants and other places outside the residence, is held insufficient to be submitted to the jury upon the issue as to whether defendants had converted their residence into an “apartment house” in violation of covenants restricting use of the property in the area to one family dwellings.

Appeal by plaintiffs from Bobbitt, J., April 1952 Mixed Term, Buncombe.

Affirmed.

This is a civil action commenced for tbe purpose of restraining tbe defendants from violating the restrictions set forth in tbe general plan of development of Lake View Park, and for a mandatory injunction directing said defendants to reconvert their residence into a one-family dwelling bouse.

Tbe plaintiffs are owners of lots and homes in Block O of Lake Yiew Park, a restricted residential subdivision located in tbe city of Asheville, a plat of which subdivision is of record in tbe office of tbe Register of Deeds for Buncombe County in Plat Book 4, at page 140. Tbe defendants took title to Lot 531, in Block 0, of said subdivision, by deed dated 24 November, 1944.

Tbe complaint sets forth in detail tbe general plan of development of Lake Yiew Park, including tbe restrictive covenants affecting said develop-mentj which restrictions are in part as follows: “Tbat they will not erect ... on tbe land above described any . . . apartment bouse, . . . two-family dwelling bouse, ... or at any time use or suffer to be used any building or buildings erected thereon for any such purpose.” Tbe only allegation of a violation of tbe restrictive covenants is paragraph 12 of tbe complaint, which reads as follows: “Tbat on or about tbe month of December, 1945, tbe defendants violated tbe restrictions set forth in tbe general plan of development of Lake Yiew Park and breached their contract to comply with the same, by beginning tbe conversion of said one-family dwelling house into an apartment bouse, and completed said conversion on or about tbe month of January, 1946, making of said one-family dwelling bouse an apartment bouse or building, and have maintained and now maintain said building as such, in plain and clear violation of said restrictions and in breach of said contract.” Tbe case was tried below with that allegation as tbe only basis for tbe relief sought.

At tbe close of plaintiffs’ evidence, tbe defendants’ motion for judgment as of nonsuit was sustained. Plaintiffs excepted and appealed, assigning errors.

Bernard & Parker and J. Y. Jordan, Jr., for plaintiffs, appellants.

Sam M. Cathey, James S. Howell, and Oscar Stanton for defendants, appellees.

YaleNtiNE, J.

Tbe taproot of plaintiffs’ case is nestled in tbe allegation that defendants have violated tbe restrictive covenants of Lake Yiew Park by converting their residence into and maintaining it as an apartment house. Conceding without deciding that tbe restrictive covenants of Lake Yiew Park are subsisting and binding upon tbe defendants, this single question is presented for decision here: Is tbe evidence in tbe record, taken as true and liberally construed in favor of tbe plaintiffs, sufficient to take tbe case to tbe jury upon tbe issues properly raised ?

In order for plaintiffs to make good their allegation, they must offer evidence tending to show that tbe defendants have so altered their residence as to convert it into an apartment bouse within tbe meaning of that term.

Tbe definition of an “apartment bouse” varies somewhat depending upon tbe surrounding circumstances, but that term invariably connotes a bouse constructed with separate apartments for more than one family or at least a bouse that is constructed larger than necessary for one family and suitable for occupancy and independent housekeeping by more than one family. 3 O.J.S. 1422, and cases there cited. It has been uniformly held that an apartment bouse is a building used as a dwelling for several families, each living separate and apart. DeLaney v. VanNess, 193 N.C. 721, 138 S.E. 28; Satterthwait v. Gibbs, 135 Atl. 862. For general annotations, see 14 A.L.R. 2d 1380 et seq.

Tbe plaintiffs’ evidence tends to show that tbe defendants purchased Lot 531, in Block 0, of Lake Yiew Park, upon which was situate a story and a half residence with a reasonably full size basement. Tbe basement contained a coal-burning beating plant and a garage. Tbe first floor or main part of tbe residence consisted of a large living room, dining room or alcove, kitchen, bedroom, bath and patio porch on the back. The second floor or attic consisted of bedroom and bath.

Mrs. Johnson, one of the defendants, who was called as a witness for the plaintiffs, testified that when they purchased the property, the door from the basement opened into the living room above the position of the furnace in the basement, so that when the furnace was serviced, disagreeable fumes and smoke would rise up in the living room and when it rained the basement would overflow and become muddy and mud would be tracked ,up the steps into the main part of the house. The defendants, realizing these conditions and after examining the basement of a newer house built by one of the plaintiffs in the same block, decided to partition off the furnace in their basement, to damp-proof the walls, to cover the floor with asphalt tile, and otherwise improve the basement so that it could be used by their twelve year old son as a play room and as a place to entertain his young friends. These improvements included the installation of a shower and toilet for the convenience of their son and his friends. The defendants’ son has grown to manhood and is now in the army, and soon after he went into the armed forces, someone broke in and stole a lot of things. Mrs. Johnson’s husband and codefendant is a traveling man and is away from home a good part of the time. This fact and the fright of burglars caused Mrs. Johnson to feel the need of having'some protection in the house. She requested a gentleman friend of the family to come and occupy the basement as a bedroom and be there for protection at night. To obviate the necessity of having a man as the only other person in the house and feeling the need of the companionship of another lady, Mrs. Johnson requested a lady friend of the family to occupy the bedroom in' the garret. The gentleman who has a bedroom in the basement pays rent some of the time and the other time as compensation for his room acts as handy-man around the house, firing the furnace, keeping the plumbing and other appliances in order, mowing the lawn and keeping the grounds. The lady who occupies the bedroom in the attic pays rent ten months in the year and the Other two months occupies the room rent free and cares for the house while the owners are away. There is no kitchen or other housekeeping equipment in the basement or in the attic. Both roomers take all their meals at restaurants and other places outside the residence of the defendants.

There was no evidence of sufficient housekeeping space or facilities to accommodate a family in either the basement or the attic. Indeed, all of the evidence on this subject, most of which was elicited from one of the defendants and the- roomer who occupies the basement, tended to show that the house was not used by more than one family nor as an apartment house.

Accepting all of plaintiffs’ evidence as true and measuring it by the yardstick of liberality required upon motions for judgment as of nonsuit, we must conclude that there is not sufficient evidence to take the case to the jury and that the judgment of nonsuit was properly entered.

The ruling of the court below is

Affirmed.