
    Kiley v. Hall.
    
      Building restrictions — Purchaser not chargeable with notice — As to restrictions in other deeds — Injunction by one lot owner — To enforce similar conditions in deed of another—Cannot be maintained, when — Covenant as to “dwelling” and "business block” — Interpretation of contracts.
    
    1. The purchaser of a lot in an allotment whose deed contains restrictions as to the use of the lot is not chargeable from that fact alone with notice that like restrictions are contained in the deeds to other purchasers of lots in the allotment.
    2. A lot owner cannot maintain an action to enforce by injunction the observance of restrictions contained in the deed of another lot owner where it does not appear that the latter purchased his lot with notice of a general plan for the improvement of the lots of the allotment in accordance with the restrictions contained in his deed, or with notice that such restrictions were inserted in his deed for the benefit of the owners of the other lots in the allotment.
    3. A restrictive covenant in a deed that “no dwelling shall be erected on said above premises herein conveyed containing less than six rooms; said dwelling to -be located not less than twenty-four feet from the street line not including porches,” does nót prevent the erection of a business block, and the provision relating to the location of a dwelling does not apply to the location of a business block.
    (No. 15454
    Decided May 15, 1917.)
    Error to the Court of Appeals of Mahoning county.
    This action originated in the court of common pleas of Mahoning county, where defendant in error, George H. Hall, sought by injunction to restrain plaintiff in error, John W. Kiley, from the alleged violation of a building restriction. In 1903, one Elias L. Kyle was the owner of a tract of land, then in the township of Youngstown, Mahoning county, Ohio, now in the city of Youngstown, extending from Oak Hill avenue on the east, westerly to Hillman street on the west. Kyle platted this land and the plat thereof was recorded in the records of plats of Mahoning county, on June 5, 1903. On this plat was laid out a street or avenue known as Glenaven avenue, 50 feet in width, extending from Oak Hill avenue westerly to Hillman street, and there were laid out 44 lots, 22 on either side of Glenaven avenue, each lot fronting approximately 50 feet on said avenue.
    Plaintiff in error purchased from Kyle the .first three lots west of Oak Hill avenue, having in the aggregate a continuous frontage of 150 feet on the south side of Glenaven avenue, extending south the. same width 120 feet. The deeds conveying these lots were dated August 13, 1910, and December 1, 1911, and contained the following restrictions :
    “It is further agreed and made a' part of the consideration of this deed that no dwelling shall be erected on said above premises herein conveyed containing less than six rooms; said dwelling to be located not less than twenty-four feet from the street line not including porches.
    “And it is further agreed and made a part of the consideration of this deed that no intoxicating liquors shall ever be sold or manufactured, nor shall traffic in intoxicating liquors of any kind be had on said premises.”
    The deeds for all the lots on either side of Glenaven avenue included in the Kyle plat, with the-exception of the deed for two lots known as the Sigel property on the northwest corner of Oak Hill avenue and Glenaven avenue, contained these restrictions. Seventeen lots on the south side of Glenaven avenue have been improved and residences built thereon and the owners of these lots in the building of their residences have observed the uniform building line of 24 feet, in accordance with the restrictions in their deeds. On the Sigel property is a drugstore which was built before plaintiff in error acquired his property and before more than one or two residences had been built on Glenaven avenue between Oak Hill avenue and Hillman street. In the deed for the Sigel property there were no building restrictions.
    On April 6, 1912, plaintiff in error sold to defendant in error a portion of the real estate purchased from Kyle, said portion so sold being known as City Lot No. 13185, being 40 feet front on the south side of Glenaven avenue, extending south the same width approximately 120 feet, the east line thereof being 80 feet west of the west line of Oak Hill avenue. The deed from' plaintiff in error to defendant in error contained the restrictions hereinbefore set forth, and the defendant in error, in conformity therewith, erected a residence on his lot.
    Plaintiff in error, having retained 80 feet on the south side of Glenaven avenue by 120 feet on the west side of Oak Hill avenue (said parcel being at the southwest corner of Glenaven avenue and Oak Hill avenue), was proceeding to erect thereon, immediately east of the premises of defendant in error •and within about three feet of the south line of Glenaven avenue, what is alleged in the petition to be a store and dwelling to be occupied for residence and mercantile purposes. Within a day after plaintiff in error began to excavate on his property for the foundation of the building, defendant in error and other owners of property on Glenaven avenue served a written notice upon plaintiff in error, in which they protested against the erection of the proposed building.
    It is alleged in the petition that the erection of this building would be in violation of the restriction contained in the deed to plaintiff in error, and the court was asked that he and one of his employes, who was named as a codefendant, be restrained by injunction from erecting any house, building or structure on said property, nearer Glenaven avenue than 24 feet, and that defendant in error be given such other and further relief as might be equitable and proper.
    Plaintiff in error filed an answer in which he admitted practically all the allegations of the petition, but denied that in the erection of his building he was violating the building restrictions contained in his deed. In the court of common pleas the cause was heard on the pleadings and the evidence and there was a finding in favor of plaintiff in error and the petition was dismissed.
    The case was appealed to the court of appeals. No temporary restraining order was asked by defendant in error. When the case was tried in that court, plaintiff in error had completed his building, which is a two-story brick building fronting on Oak Hill avenue, the north wall thereof being about three feet from Glenaven avenue. On the first floor of the building are two storerooms which were occupied and used for business purposes. According to the testimony of the contractor who built the building, the south side of the second floor had been arranged for dwelling purposes and the north side for offices, but at the time of the trial the second floor was used exclusively for dwelling purposes.
    The court of appeals, upon the hearing of the case upon the pleadings and the evidence, found in favor of the defendant in error and that the building constructed by plaintiff in error was in violation of the building restriction. The order of the court was that plaintiff in error be enjoined from erecting upon his property any house, building or structure within 24 feet of Glenaven avenue, and that the building on said lot within said 24 feet of Glenaven avenue be removed before May 1, 1917.
    On application of plaintiff in error, the court of appeals was directed,to certify its record to this court.
    
      Mr. E. H. Moore and Mr. David G. Jenkins, for plaintiff in error.
    
      Messrs. Burky & Burky, for defendant in error.
   Newman, J.

Defendant in error purchased his lot from plaintiff in error and in his deed are found the same restrictions that are contained in the deeds of Kyle, the allotter, to plaintiff in error. No claim, however, is made that plaintiff in error is under any different obligation to defendant in error in the observance of these restrictive covenants than he is to any of the other lot owners. Defendant in error, so far as his right to equitable relief is concerned, is in the same position as the other lot purchasers.

It is alleged in the petition that Kyle platted his land in lots with the design of having the same used and occupied as private residences, and it is urged by counsel that the plat constituted, and was designed as, a residence district. So far as we are advised the recorded plat furnishes no suggestion whatever of any intention on the part of Kyle to impose any restriction upon the purchasers as to the manner in which they were to build upon the lots purchased by them. It is further alleged that plaintiff in error, by the acceptance of his deeds from Kyle, covenanted with Kyle, and his assigns as well, for the use and benefit of any and all persons who became the owners of or might have any title derived immediately or remotely from Kyle or his grantees to any lot or part thereof in the allotment, not to erect, or cause, permit or allow to be erected or placed at any time or for any purpose, any dwelling or building less than 24 feet from the street line. This is denied by answer. The burden was upon defendant in error to establish this proposition.

In all the deeds from Kyle for the lots in his allotment there are contained restrictions identical with those contained in the deeds to plaintiff in error, with the exception of the deeds for the two lots at the northwest corner of Oak Hill avenue and Glenaven avenue, which, it appears, were practically the first lots sold by Kyle. In inserting these restrictions in the deeds, Kyle, no doubt, had in his own mind and contemplated a general plan or scheme of improvement for these lots. It is also manifest from the fact that he retained none of the property that this general plan was intended by him to be for the benefit of his grantees and not for himself. But can it be said that such plan came to the notice of his grantees when they purchased their lots, or that they purchased them with reference thereto? If the plan had been noted upon the recorded plat, notice thereof would be imputed to each lot purchaser. It would be a part of his chain of title. And, again, Kyle, the allotter, in his deeds did not advise a purchaser of a general plan, and did not covenant that all sales of lots in his allotment should be made subject to like restrictions, as was done in Wallace et al. v. The Clifton Land Co., 92 Ohio St., 349; nor did each purchaser covenant and agree as well for the use of every other person who might become the owner of a lot in the allotment as for the use of his grantor that he would observe the restrictions, as was done in McGuire v. Caskey, 62 Ohio St., 419. In those two cases, which are entirely different from the case here, the court held that a lot owner could enforce by. injunction against any other lot owner the restrictive covenants written into each deed in pursuance of the general plan.

It is stated by counsel for defendant in error that the several purchasers of lots understood when they made their purchase that Kyle intended that the plat of lots should be devoted to residential purposes — in other words, that they had actual notice of a general plan. We find no evidence in support of this claim. It is true that when this case was tried, in 1916, practically all the lots had been built upon for residence purposes and a uniform building line had been observed. But it is to be remembered that plaintiff in error acquired his lots in 1911 and from aught that appears in the record the same condition as to residences did not exist then. In fact, when plaintiff in error purchased his lot, there had been erected a business house at the northwest corner of Oak Hill avenue and Glenaven avenue, and perhaps one or two residences.

The restrictions contained in the deeds are as follows:

“It is further agreed and made a part of the consideration of this deed that no dwelling shall be erected on said above premises herein conveyed containing less than six rooms; said dwelling to be located not less than twenty-four feet from the street line not including porches.
“And it is further agreed and made a part of the consideration of this deed that no intoxicating liquors shall ever be sold or manufactured, nor shall traffic in intoxicating liquors of any kind be had on said premises.”

These restrictions, so far as a purchaser knew or was bound to know, may have been inserted in his deed alone and were not intended to apply to any other lot in the allotment, for we know of no rule of law that charges one lot owner with constructive notice of a covenant contained in a deed not in his chain of title. Each purchaser, of course, knew that his grantor, Kyle, could enforce the observance of these restrictions, but we do not know upon what theory the covenant in his deed would advise him that he owed a similar duty to the other lot owners. So there is nothing on the recorded plat or in his deed that would charge plaintiff in error when he purchased his lot with notice of a general plan or with notice that the restrictions contained in his deed were for the benefit of the other lot owners.

In Mulligan v. Jordan, 50 N. J. Eq., 363, it was held: “The right of grantees from a common grantor to enforce, inter se, covenants entered into by each with said grantor, is confined to cases where there has been proof of a general plan or scheme for the improvement of the property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all purchasers, and to be for the benefit of each purchaser, and the party has bought with reference to such general plan or scheme, and the covenant has entered into the consideration of his purchase.”

In that case the same covenant had been inserted in each deed made by the allotter and it is said by the court that this has been held not to be sufficient evidence of the covenant having been entered into for the benefit of the other lands conveyed by the same grantor. Several cases are cited in support of this holding, among which is DeGray v. Monmouth Beach Club House Co., Id., 329, 340, where Green, Vice Chancellor, after reviewing and analyzing numerous cases relating to building restrictions, uses this language: “The law, deducible from these principles and the authorities, applicable to this case, is, that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan; one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.”

In the DeGray case the conclusion reached was that the right of the complainant to maintain his action was clear. But the court was of the opinion that the right of action was dependent as much upon the fact of the general scheme as on the covenant in the deed. There was no doubt in the mind of the court that each purchaser had bought with the understanding that all deeds were to contain the covenant, and had bought with that consideration in view. On page 341 are stated numerous facts and circumstances which clearly established a general plan and from which knowledge thereof was chargeable to each lot owner.

But in the instant case defendant in error failed to show that plaintiff in error when ’he purchased his lots knew that the restrictions in his deeds were for the benefit of other lot owners or that he bought with notice that a plan was to be- carried out with respect to the lots sold or to be sold in pursuance of it. Our holding is, therefore, that defendant in error was not in a position to maintain an action to restrain plaintiff in error from violating the restrictive covenants contained in. his deed.

But assuming that the right of action did exist in defendant in error, was the court of appeals correct in holding that the building constructed by plaintiff in error was in violation of the restriction? The restrictive covenant with which we are concerned is an agreement on the part of the grantee that no dwelling shall be erected upon the premises containing less than six rooms, the dwelling to be erected not less than 24 feet from the street line not including porches. It is urged that this restriction contemplated the use of the lot for residence purposes. To give it this construction it would be necessary to extend and enlarge the meaning of the language used. This would be in violation of the well-established rule that words restricting the use of property are to be construed strictly against the grantor and those claiming the benefit of such restriction. The covenant simply describes the kind of a dwelling that shall be erected upon the lot and defines its location. It does not provide that a dwelling' only shall be erected thereon. If the restriction had been: “No business house shall be erected on said premises less than two stories in height to be located on the street line,” would it be seriously contended that such restriction would have precluded the erection of a dwelling house? It is to be noted that immediately following the restriction we have been considering is a clause prohibiting the sale of intoxicating liquors on the premises. If the lot were to be used for residence purposes only, reference to the sale of intoxicating liquors would have been wholly unnecessary. If business was to be prohibited, it would be business generally and there would have been no necessity of specifying a particular kind that was to come within the prohibition. According to our view, the restriction in question did not prohibit the use of the lot for business purposes, and, as the clause defining the location refers to a dwelling, the language cannot be extended to apply to a business house.

The court of appeals in its order required that only that part of the building within 24 feet of Glenaven avenue be removed. The building unquestionably is not a “dwelling” as that term is understood and as it is used in the restrictive covenant. It is primarily a business block. We infer, therefore, from the order made by the court of appeals, that it found no objection to the erection of such a building but was of. the opinion that it should not have been built within 24 feet of Glenaven avenue. We cannot concur in this view. The uniform property line regulation, as we have said, related solely to a dwelling and could not apply or be enforced where a business block was built.

Judgment .of the court of appeals reversed and judgment for plaintiff in error.

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