
    Doan v. The Cleveland Short Line Ry. Co.
    
      Real property — Uniform allotment restrictions — Superseded by power of eminent domain — Acquisition for public purposes— Other lot owners have no damage, claim, when.
    
    1. Where an allotter adopts a plan for the improvement of his allotment whereby the use of the lots is restricted exclusively for residence purposes, such restriction cannot be construed as applying to the state or any of its agencies vested with the right of eminent domain in the use of the lots for public purposes.
    2. Where a company or any agency of the state vested with the right of eminent domain has acquired lots in such an allotment and is using the same for public purposes no claim for damages arises in favor of the owners of the other lots on account of such use.
    (No. 14622
    Decided July 2, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    Plaintiff filed'her statement of claim or petition in the municipal court in the city of Cleveland, of which the following is a copy:
    “The plaintiff for cause of action against defendant says that the defendant is a corporation, duly organized and existing under the laws of the state of Ohio and authorized by law to make ap-. propriation of private property and is engaged in the business of constructing, maintaining and operating a freight railroad around the city of Cleveland.
    “Plaintiff is the owner of a certain parcel of land, which fronts 35 feet on Eddy Road, in the city of East Cleveland, Ohio, and has a depth of 103 feet. Said parcel of land being sublot No. 363, in an allotment in said city, known as The Frisbie Company’s Windemere Allotment No. 2, which is shown and recorded in Volume 27, at page 18 of maps of Cuyahoga county.
    “Plaintiff says that the title to the tract of land of about 6-J acres covered by said allotment, was on and prior to the 30th day of July, 1901, in The Frisbie Company, an Ohio corporation, and that said tract was surveyed and platted and divided into sublots and streets and after said plat had been duly approved by the council of the then village of East Cleveland, it was filed for record with the recorder of Cuyahoga county on the 3rd day of July, 1901, and was recorded onAug. 1, 1901, in Volume 27, of maps, page 18.
    “Said allotment contains about 58 sublots numbered consecutively from 316 to 373, inclusive, and is divided by two streets, each 40 feet in width; one, Pontiac street, running lengthwise in a southeasterly and northwesterly direction, through said allotment and upon which are fronting sublots No. 316 to 356, inclusive. The other street, Hayden avenue, is at right angles with Pontiac street, running in a northeasterly and southwesterly direction and passes through about the middle part of said allotment. On the south or southeast of said allotment and parallel with Pontiac street, there is a street 60 feet in width, known as Eddy Road, upon which are fronting sublots Nos. 357 to 373, inclusive. This street is the main thoroughfare in that vicinity.
    
      “Plaintiff further says that it was the plan and intention of the owners and of The Frisbie Company, that this whole allotment, except a few lots fronting on Eddy Road, should be used exclusively for residence purposes and at the time the allotment was made and the plat recorded and before any of said sublots had been sold, the owners and the Frisbie Company, adopted a general plan or scheme for the use and the improvement of said allotment, which general plan or scheme was, that all of said sublots should be used exclusively for residence purposes, except a few sublots fronting on Eddy Road, which street was the main and business thoroughfare of that vicinity and that it was deemed best and necessary that some of said sub-lots, fronting on Eddy Road, should be used for stores and business purposes and having adopted said general plan and scheme for the use and improvement of said allotment, as to residence purposes, all of said sublots in said allotment were placed upon the market for sale, subject to said restrictions, that they should be used exclusively for residence purposes, as aforesaid.
    “Plaintiff also says that the Frisbie Company then, from time to time, sold said sublots, until they were all sold and that in each and every deed for said sublots from the Frisbie Company to the various purchasers, except in one or two sublots on Eddy Road, there was the following restrictions : ‘As part of the consideration for this deed, it is hereby agreed that the said land shall be used exclusively for residence purposes.’
    
      “Plaintiff, knowing of said restrictions and uniform plan, purchased her sublot in said allotment for residence purposes and relying upon the performance of said uniform restrictions upon all of said sublots, as aforesaid, which she claims adds great value to her sublot and she says that she has not violated said restriction nor has said restriction upon the other sublots in said allotment been violated, so far as is within her knowledge.
    “The plaintiff also alleges that the defendant purchased some of the said sublots in said allotment, upon which there are the uniform restrictions for residence purposes, as aforesaid and at and before the time of the purchase of said sub-lots by the defendant, the defendant had knowledge of the facts set forth in the foregoing allegations and knew that there was a uniform plan or scheme for the improvement of said allotment as to the use of all of said sublots for residence purposes exclusively and that the defendant had such knowledge' and for some time before the purchase by it of said sublots, the defendant endeavored by various means, to secure a release from, or waiver of, said uniform restriction on the sublots of said allotment and having failed to secure said release or waiver, the defendant, with full knowledge as aforesaid, nevertheless purchased some of said sublots with the purpose and intent of using said sublots for other than residence purposes and in violation of said uniform restriction. The defendant now is and for some time has been, building a railroad on and through the said allotment and having purchased some of the sublots in said allotment, upon which there is a uniform restriction for residence purposes, as aforesaid, it has surveyed and staked out a right of way thereupon for the purpose of constructing, 'maintaining and operating a railroad on and over said sublots and it has constructed and is now constructing on its sublots, within its right of way in said allotment, an embankment 135 feet in width at its base, 25 feet in height and 65 feet in width at its top, on the top of which embankment, the defendant intends to build four parallel tracks, over which it will operate a steam railroad, for the purpose of carrying freight, all of which is in violation of the property rights of the plaintiff and to the plaintiff’s great damage and the same is the taking of private property, without first making compensation therefor.
    “The plaintiff further says that by reason of said uniform plan and scheme of restricting said allotment exclusively to residence purposes, as aforesaid, that there was created a property right in each and every lot in said allotment, on behalf and in favor of each and every other lot in said allotment, to the extent that no lot in said allotment can be used for any other than residence purposes and by virtue of which, this plaintiff, by the ownership of said sublot, has a property right which the defendant has violated and taken, without first making compensation therefor, by using these lots within its right of way, in said allotment, for other than residence purposes and that said property right is claimed by the plaintiff under the Constitution of Ohio and the United States.
    “Plaintiff avers that the defendant has taken possession of and is occupying and using the private property and interest in land of the plaintiff as set forth above and that the private property and interest in land of the plaintiff, as aforesaid, so occupied and used by the defendant, has not been appropriated or paid for by the defendant and is not held by an agreement in writing with the owner thereof.
    “The defendant has taken possession of and is occupying and using the private property and interest in land of plaintiff, as aforesaid and has no right, legal or equitable thereto, all to the damage of the plaintiff, in the sum of One Thousand ($1,000.00) Dollars.
    “Wherefore, the plaintiff prays judgment against the defendant for the sum of One Thousand ($1,000.00) Dollars.”
    Defendant demurred to the statement of claim or petition upon the grounds, first, that there was a defect of parties plaintiff, and, second, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The demurrer was sustained, and the plaintiff not desiring to plead further, judgment was rendered in favor of the defendant. This judgment was affirmed by the court of common pleas in an error proceeding to that court, and the judgment of the court of common pleas was affirmed by the court of appeals.
    
      
      Messrs. Howell, Roberts & Duncan and Messrs. Ford, Snyder & Tilden, for plaintiff in error.
    
      Messrs. Tolies, Flogsett, Ginn & Morley, for defendant in error.
   Newman, J.

It is alleged in the petition that it was the plan and intention of the owner of the allotment in question that the lots should be used exclusively for residence purposes and at the time the allotment was made and the plat recorded and before any of the lots had been sold such general plan was adopted. In each of the deeds from the allotter there is contained the following covenant: “As part of the consideration for this deed, it is hereby agreed that the said land shall be used exclusively for residence purposes.” It is the contention of counsel for plaintiff in error that by reason of this general plan and of the covenant in the different deeds there was conferred upon the owner of each lot a property right in each and every other lot in the allotment. Practically all of the cases in which restrictive covenants in deeds and general plans for the improvement of an allotment have been involved, are cases in which the aid of a court of equity has been invoked by the owner of a lot to prevent the owner of another lot from violating a covenant and from defeating the general plan of the improvement. Such restrictions have been recognized and given full force and effect between private owners of lots, and an owner of a lot has been enjoined from using the same for purposes other than the uses to which it was restricted. Wallace v. Clifton Land Co., ante, 349.

The case at bar, however, is one at law, in which plaintiff seeks to recover compensation by way of damages resulting from the taking of an alleged property right which she claims to have had in the lots of the defendant, a railroad company organized under the laws of the state and possessing the right of eminent domain. It is the owner of a number of lots in the allotment and at the time of the commencement of this action was building a railroad on and over its property. It was devoting these lots to a public use. If plaintiff is entitled to compensation by way of damages by reason of the use of this property by the railroad company, a right must grow out of the covenant in the deeds of the allotter and the general plan adopted which restrict the use of the property to residence purposes. If such restriction is not to be construed as preventing the use of the property for public purposes, then of course there is no violation on the part of the defendant, and it follows that no recovery can be had. If, on the other hand, it is to be construed as prohibiting the use of the property for any purpose other than that of residences, it would prevent a public use of the lots and thereby defeat the right of eminent domain. No covenant in a deed restricting the real estate conveyed to certain uses and preventing other uses can operate to prevent the state, or any body politic or corporate having the authority to exercise the right of eminent domain, from devoting such property to a public use. The right of eminent domain rests upon public necessity, and a contract or covenant or plan of allotment which attempts to prevent the exercise of that right is clearly against public policy and is therefore illegal and void. Plaintiff’s right to compensation, if it exists, must be based upon the restrictive covenant in the deeds and the general plan adopted. To give to plaintiff this right we would be compelled to recognize a right existing under what we hold to be an invalid restriction. As was said in United States v. Certain Lands, 112 Fed. Rep., 622: “As each owner of land holds his property subject to the devesting of his title through the action of the state or of the United States, based on public necessity, can he by any means, directly or indirectly, impose upon the-state or the United States the burden of compensating him for damage resulting from that public use which does not directly invade his land? * * * Can it be possible that these owners, by mutual agreements or covenants that they or their successors in title will not do things which may be necessary for national defense, and by agreeing that these things are noxious and offensive to them, compel the United States to pay them for the right to do, upon lands taken, what is necessary for the protection of the nation?

“If such a right can exist against the state or nation, and can be considered property, then only a mere device of conveyancing is necessary to defeat entirely the rule that depreciation of property incidental to a public use does not constitute a ‘taking’; for private deeds may then provide in express terms against such uses as may be necessary in case the government exercises the right of eminent domain. If these private covenants are, as against the government and state, to be recognized as property, then the government, by taking such uses, takes private property, and múst make compensation. * * * While the owners may so contract as to control private business, and thereby increase the values of their estates, they are not entitled so to contract as to control the action of the government, or to increase the values of their lands by any expectation or belief that the government will not carry on public works in their vicinity, or that in case it does it will compensate them for the loss due to the defeat of their expectation that it would not. * * * Each landowner holds his estate subject to the public necessity for the exercise of the right of eminent domain for public purposes. He cannot evade this by any agreement with his neighbor, nor can his neighbor acquire a right from a private individual which imposes a new burden upon the public in the exercise of the right of eminent domain.”

What was said by the court in that case in reference to the state and government applies with equal force to a railroad corporation or any agency of the state which is vested with the right of eminent domain. We are constrained to the conclusion that restrictive covenants in deeds or a general plan for the improvement of an allotment cannot be construed to prevent the use of the lots for public purposes, and as against the state or any of its agencies which are vested with the right of eminent domain are illegal and void, confer no property right and cannot be the basis of a claim for damages.

We are of the opinion that the petition did not state a cause of action, and the judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Johnson,. Wanamaker, Jones and Matthias, JJ., concur.  