Cauble v. Bell, 249 N.C. 722 (1959)

March 18, 1959 · Supreme Court of North Carolina
249 N.C. 722

DAVID H. CAUBLE and wife, HARRIET M. CAUBLE, on behalf of themselves and all other residents and property owners in Fairmount Park v. CARL J. BELL and wife, LOLA BEATTY BELL and the SUN OIL COMPANY, a corporation.

(Filed 18 March, 1959.)

1. Appeal and Error § 50—

While the court may review the findings of fact in injunction proceedings upon appeal from the granting or refusal of a temporary restraining order, where the court finds the facts by agreement of the parties upon the hearing upon the merits and issues a permanent restraining order on such findings, the findings are conclusive if supported by competent evidence, and the Supreme Court may review the evidence only to ascertain if there be any competent evidence to support the findings and whether the findings support the judgment.

3. Trial § 55—

Where a jury trial is waived and the facts are found by the court under agreement of the panties, the court’s findings have the force and effect of a verdict by a jury.

3. Deeds § 19: Injunctions § 7—

Where the court, under agreement of the parties, finds upon the hearing- on the merits that -the subdivision in question had been developed under a uniform plan for residential purposes, conformed to within the area, and that the business development in the neighborhood was outside -the restricted area, the findings support the issuance of order enjoining a land owner and Ms prospective purchaser from effecting a threatened violation of the restrictive covenants.

Appeal by defendants from Froneberger, J., in Chambers in Gaston Oou-nty, December 23, 1958.

*723Plaintiffs, property owners in Fairmount Park, -a residential subdivision ¡of Gastonia, instituted this action for injunctive relief to restrain defendants Bell, likewise property owners in the subdivision, and Sun Oil Company, a prospective purchaser from the Bells, from violating covenants, appearing in deeds for lots in the subdivision, restricting the use of the property to residential purposes. Unless enjoined, defendants will erect a gasoline service station.

Defendants assert lack of a unified plan indicated by the sale of some lots by Hanna, who owned and ¡subdivided the area, without any limitations with respect ¡to ¡the use of those lots and changes which have taken place in the area surrounding the ¡subdivision since 1921 when it was laid out. They allege these changes are of such character and magnitude as to compel the court to refuse equitable relief, leaving plaintiffs to pursue such legal remedies, if any, as they may have.

A jury trial was waived. The court found the facts based on stipulations, 'affidavits, the pleadings, exhibits consisting of pictures taken in the -area, and a map of the ¡subdivision.

The .court found: D. B. Hanna, in 1921, caused his land to be subdivided into 124 lots known as Fairmoamt Park Subdivision. A miap of the subdivision was duly recorded in Gaston County. The deeds for 120 lots contained the ¡restrictive covenants which plaintiffs ¡seek to enforce. One deed for four lots ¡on the extreme eastern edge ¡of the subdivision did not contain these restrictions. . . (T)he said D. B. Hanna ¡and wife, Minnie E. Hanna, ¡subdivided said land, recorded the plats thereof, -and included the covenants, conditions, and restrictions in the deeds to said lots -in accordance with -and pursuant to a general plan or scheme for the improvements and development of said subdivision and that the said restrictions, covenants, and conditions were a part ¡of a uniform plan ¡or scheme for the development ¡of said property ¡and was done to induce pomchasers to pay higher prices for lots 'by reason ¡of the ¡restrictions ¡and their mutual protection on such ¡account.

“5. That the defendant, Oarl J. Bell ¡and wife, Lola Bell, purchased the .property now ¡owned by them with notice ¡of the ¡sa-id restrictions and covenants ¡in that the deed by which ¡the defendants obtained said property ¡and each and every deed -in the defendants’ chain of title contained specific reference to ¡said covenants, conditions and restrictions.

“6. And the Oourt further finds ¡as a fact that ¡the restrictions, covenants, and conditions which were placed on said property in ¡accordance with a uniform plan or scheme of development have never *724been violated nor abandoned. However, outside of Fairmount Park there is a filling station situated across Franklin Avenue from the property of the defendants and -there are numerous businesses adjoining Fairmount Park on the Eastern and Northwestern side; that Franklin Avenue is a heavily (traveled street or highway and runs adjacent to Fairmount Parle on the North Side; that the City of Gas-tonia has zoned the lots of the defendants as 'Neighborhood Trading;’ and that while there are numerous businesses on the West and East of Fairmount Park there has been no invasion by businesses within the restricted area.”

Based on the findings the court entered judgment enjoining the use of lots 1 and 2, Block 10, in violation of the covenants and restrictions -applicable to Fairmount Park. Defendants excepted and appealed.

L. B. Hollow ell and Verne E. Shive for plaintiff appellees.

Ernest R. Warren, Grady B. Stott, Hugh W. Johnston, and J. Bruce Morton for defendant appellants.

RodmaN, J.

Defendants’ first 'assignment of error is directed to the failure of the court to make findings of fact which conform to their views. They urge us to review the findings with a resultant picture presented by the use of their spectacles.

This -asserted right to review -and make -other and -additional findings is based on the fact that plaintiffs seek inj-unotive relief. This Court has the right to review findings made with respect to interlocutory orders denying or granting injunctive relief. Cahoon v. Hyde County, 207 N.C. 48, 175 S.E. 846; Wentz v. Land Co., 193 N.C. 32, 135 S.E. 480; Coates v. Wilkes, 92 N.C. 376. This is true since only questions of fact -are then considered.

The judgment here is a final determination -of -the rights of the parties. The mere fact that equitable (injunctive) relief is granted gives us n-o authority to modify findings determinative o-f issues of fact raised by the pleadings. McGuinn v. High Point, 217 N.C. 449, 8 S.E. 2d 462; Galloway v. Stone, 208 N.C. 739, 182 S.E. 333; Barringer v. Trust Co., 207 N.C. 505, 177 S.E. 795; Power Co. v. Power Co., 171 N.C. 248, 88 S.E. 349; Coates v. Wilkes, supra.

Issues of fact must be determined by a jury unless such trial is waived. G.S. 1-172; Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. When the right to a jury trial is waived, the facts found by -the judge have the force and effect of a verdict by -a jury. N. O. Const., Art. IV, sec. 13; Rubber Co. v. Shaw, 244 N.C. 170, 92 S.E. 2d 799; Little v. *725 Sheets, 239 N.C. 430, 80 S.E. 2d 44; Woody v. Barnett, 239 N.C. 420, 79 S.E. 2d 789; Bryant v. Bryant, 228 N.C. 287, 45 S.E. 2d 572.

Upon appropriate ■assignments of error we may examine the evidence to ascertain if there be any to support, the verdict. We may likewise, upon appropriate assignments, ascertain if the verdict is sufficient -to support the judgment, 'but we cannot enlarge or diminish findings which constitute the verdict. Power Co. v. Power Co., supra.

The pleadings raised issues of fact. The parties elected to waive jury trial and stipulated that the court “might hear the evidence, find the facts and enter the judgment.” This ’Stipulation indicates an understanding of the necessity for a determination of the issues of fact raised by the pleadings.

Upon an examination of the evidence we 'are convinced there is plenary evidence to justify the findings which the court made. The assignment directed to the insufficiency cannot be sustained.

The court found a uniform -plan to develop the area, including the property of plaintiffs and defendants Bell, for residential purposes. Property owners within the area included in the plan have conformed to the covenants and plan. The business development is outside of this area and beyond the power of those in the restricted area to control.

Based on the findings suppoi ted as they ’are by the evidence, plaintiffs were entitled to 'injunctive relief to protect their property rights. Reed v. Elmore, 246 N.C. 221, 98 S.E. 2d 360; Muilenburg v. Blevins, 242 N.C. 271, 87 S.E. 2d 493; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Vernon v. Realty Co., 226 N.C. 58, 36 S.E. 2d 710; Brenizer v. Stephens, 220 N.C. 395, 17 S.E. 2d 471; McLeskey v. Heinlein, 200 N.C. 290, 156 S.E. 489.