
    INTOXICATING LIQUORS — COVENANTS.
    [Lorain Circuit Court,
    May 4, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Johnson Company et al. v. Joseph B. Covats et al.
    1. Conditions as to Sate oe Liquor — Waiver.
    Where an allotment company provided in the salé of its lots where whiskey might be sold and also where it should not be sold under penalty of reversion, the condition in the deeds prohibiting the use of the land for such purposes is not waived by the violation of such condition when the violation is only such as is necessary, and is confined to a certain locality, and thereby keeps business away from residence property, although the violation if carried to a certain extent, would estop the company from denying this privilege to all.
    2. Rute Applied.
    An allotment company is not estopped to deny the right to sell whisky to ,the purchaser of one of its lots under a deed containing a condition that no whisky shall be sold thereon by the fact that it permitted the purchaser of another lot under a like deed and condition to sell thereon while he was building a block in another section of the allotment, where such sale would ybe permitted.
   Caldwell, J. (Orally.)

This action was brought by the plaintiffs against the defendants Joseph B. Covats and one Smith to whom Covats deeded a certain lot. The action was brought to enjoin Covats from entering upon the sale of whisky upon his lot which he bought from the Johnson Company. This lot is situated in an allotment made by the land company at the furnaces between here and Lorain; it is now South Lorain, in the city of Lorain.

The petition avers the sale was on condition that the lot was to revert in case he undertook to sell whisky upon the property.

This was a covenant that would run with the land, and if it was a covenant that bound Covats, it was one that bound Smith. It is not a personal covenant simply.

The only defense to this is, that while the Johnson Company, and its predecessors in title, undertook to lay out here a large allotment, and sell lots off according to a certain plan of where whisky should be sold and where it should not be sold, that they did not follow out rigidly and carefully that plan in the sale of land; and, in the second place, it has varied from that plan somewhat by allowing certain parties to enter upon and sell whisky where their deeds prohibited them, and they have done this for a consideration, and having sold a part of these lots, it is no longer for the Johnson Company to say whether a man could violate his covenant or not; that every owner of a lot in the entire allotment has, as much to say about that as the Johnson Company, and having taken upon itself.to do this it is now estopped from denying to one the privilege that has been extended to some,

That is the defense. II that offense against the original plan was carried to a certain extent by the Johnson Company it no doubt could be made a bar against them, but if the violation is only such as is necessary and is confined to a certain locality, and it keeps business away from residence property generally, where it is principally residence procerty,' we think there is no waiver of this condition in other deeds.

It is charged that one party undertook to sell whisky and he was enjoined or sued by the plaintiffs and that they permitted him to sell thereafter, while he was building a block over on Tenth avenue, where he would be permitted to sell whisky.

We find that there has been no variation by the plaintiffs from this original plan to amount to much, and it has only been in that locality where business purposes demanded it, and where it is for the benefit of not only business generally, but residence property as well, if this kind of business can ever be beneficial. It is better at least to keep it confined to a certain street than it is to allow it to scatter all over the allotment. We find there has been no waiver on the part of the plaintiffs nor any one else in this provision of the deeds.

We find there have been no acts that will shut them off from enforcing it in this case. ’

That being true it follows they have a right to enjoin this party from selling whisky upon this lot, and that is our judgment in the case.  