
    Arthur et al., Apellants, v. Bender et al., Appellees.
    (No. 22083
    Decided March 19, 1951.)
    
      Mr. Lody Huml, for appellants.
    
      Messrs. Edmiston, Boldiser, Schneider dt Zellmer, for appellees.
   Fess, J.

This appeal on questions of law is from a judgment of the Common Pleas Court denying the relief prayed for in the plaintiffs’ petition for injunction and other relief.

The petition was not formally dismissed, but no complaint is made regarding the finality of the order. A temporary restraining order previously granted had expired and the cause was heard upon the merits for a permanent injunction.

Plaintiffs sought to enjoin the defendants from moving an old house and setting it upon sub lot No. 212 in the village of Warrensville Heights, located across the street from plaintiffs’ lot in the same subdivision. The evidence disclosed that there was a uniform and general plan of development containing 19 specified restrictions relating to the lots in the subdivision, including those of plaintiffs and defendants. The original agreement between the owners recited that the premises were subject to the restrictions until July 1, 1975.

One of these restrictions was that “no building of any kind shall be moved upon any lot and no building shall be constructed containing any used or secondhand material. ’ ’

Torrens title certificates were issued to the parties, containing the restrictions which were also designated as covenants running with the land.

Prior to purchasing the house, on July 5, 1950, defendants in compliance with an ordinance of the village secured a permit to move the house and erect it upon their lot. One defendant was not aware of any objections on the part of her neighbors until after the basement and foundations were constructed and the house placed thereon. On July 27, the objectors appeared at a meeting of the village council and protested against the issuance of the permit because it violated the restrictions contained in the deeds. One of the defendants was present at this meeting. Apparently the protest was disallowed by the council on the ground that, under the applicable ordinances, permits for the moving and erection of buildings are issued in compliance with such ordinances without regard to any building restrictions incorporated in deeds.

Plaintiffs filed their petition herein on July 29, 1950. A temporary restraining order was granted on August 3, 1950, to be effective until August 10, 1950, to which date the cause was continued for further proceedings.

There was no credible evidence tending to show that the restrictions had been disregarded to such a substantial extent as to indicate acquiescence on the part of the plaintiffs and the other lot owners. In his opinion, the trial judge stated that he inspected the property complained of and noted that similar types of buildings are situated in the immediate neighborhood. We regard that statement as insufficient to substantiate defendants’ claim, as set forth in the answer, that the restrictions have been violated in numerous instances.

The lot in question is a corner lot on the edge of the subdivision and abuts upon a mud road. The property across the road is a large unimproved field. The rear of defendants’ lot is across the street from plaintiffs’ property. The side of the street upon which plaintiffs’ home is located is improved with modest but well kept homes. Photographs show that defendants’ house is somewhat unsightly and of a sufficient vintage to have lightning rods. One of the defendants testified that their plans included the shingling of the outside of the house by way of improvement. The architect’s drawing and plans were offered as exhibits but are not a part of the bill of exceptions. There was no evidence of actual damage suffered by plaintiffs.

In its memorandum denying the injunction, the Common Pleas Court found that there was no overall plan as to the restriction which all the original property owners or their successors in title were bound to observe.

The court apparently overlooked the fact that there was admitted in evidence a copy of the original recorded plat, the restrictions relating thereto, and the defendants’ Torrens certificate of title reciting that defendants are the owners in fee simple of the lot in question, subject to the restrictions contained in the original agreements between the predecessor owners and to the 19 specified restrictions set forth in the certificate.

The court held also that the permit to move the house to the lot and the absence of any zoning restrictions relating to its erection weighted the equities in favor of the defendants, and that property owners should be vigilant in requiring that protective reasonable restrictions, according to law, changing times, and circumstances, be enacted by local law. The enforcement of appropriate building restrictions incorporated in dedications and deeds antedate zoning regulations by a number of years. Stines v. Dorman (1874), 25 Ohio St., 580, and cases cited on page 583.

It is well settled in Ohio that a court of equity will enforce the observance of valid restrictive covenants as to the use of property, which run with the land, where the grantee has notice of such covenants. Grant v. Hickok Oil Co., 84 Ohio App., 509, 513, 87 N. E. (2d), 708. It is not essential to the right of a plaintiff to have such a restrictive covenant enforced in equity that the covenant be, technically speaking, a covenant running with, the land, where the defendant has actual or constructive notice of the restriction. Brown v. Huber, 80 Ohio St., 183, 201, 88 N. E., 322, 28 L. R. A. (N. S.), 705.

In the instant case, the defendants had notice of the restriction in the certificate of title, as previously indicated. There is no evidence of any actual damage which the plaintiffs and other lot owners might suffer as a result of the erection of defendants’ building, but proof of actual damage is not required as a basis for relief. The nature of the damages is such as not to be susceptible of proper assessment by the trier of the facts. Stines v. Dorman, supra.

In Brown v. Huber, supra, there was likewise no finding that the contemplated improvement would appreciably injure or damage the property of the plaintiff, but the Supreme Court directed the issuance of the injunction. See, also, Dales v. Albrecht, 11 Ohio App., 368.

Inasmuch as plaintiffs elected to appeal on questions of law rather than on questions of law and fact, the judgment of the Common Pleas Court is reversed and the cause remanded for further proceedings in accordance with this opinion and without prejudice, upon retrial, to the right of defendants to submit evideuce tending to show substantial abandonment of the restrictions or an acquiescence therein on the part of the several owners of the lots and such other matters of defense as may be germane to the issues.

Judgment reversed and cause remanded.

Carpenter, P. J., and Conn, J., concur.

Carpenter, P. J., Fess and Conn, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.  