
    Hitz v. Flower et al.
    
      Building restrictions — Doubtful covenants resolved, how — Words construed in abstract, when — Singular and plural terms— Number of residences per lot.
    
    1. Where a doubt exists as to the meaning of the language used in a restrictive covenant affecting the title to real estate, such doubt will be resolved against the restrictions and in favor of the free use of the real estate.
    2. The word “residence” used in a restriction affecting title co real estate, reading “upon sublots No. 1 and 32 no residence shall be erected," etc., will be construed in the abstract without reference to the singular as distinguished from the plural sense, when it appears that sublot No. 1 and sublot No. 32 are on opposite sides of the street, and that the intention of those imposing the restrictions was to encourage the development of a residence section. Nor does the language used in this respect limit the building to one residence on each sublot.
    (No. 16768
    Decided January 10, 1922.)
    Error to the Court of Appeals of Cuyahoga county.
    
      The case is one involving restrictions imposed by the allotters of the Homewood Park subdivision in the city of Lakewood, Ohio. The action was brought in the common pleas court by Charlotte ,M. Flower as the owner of one of the sublots, to-wit, sublot No. 31 in the addition, against Loretta I. Hitz as the owner of the east part of sublot No. 32 in the addition, and prayed for an injunction restraining Mrs. Hitz from violating such restrictions.
    The court of common pleas infused the relief prayed for, and dismissed the action. In the court of appeals the case was heard de novo, and that court reached the opposite conclusion and granted the relief prayed for in the petition. The court of appeals entered separate findings of fact and conclusions of law, and this court is called upon to review the case under that situation.
    Mrs. Hitz’s title came from Mrs. Heil, who retains title in the west part of sublot No. 32. The title granted was by warranty deed, without reservation or restriction. The title to Mrs. Heil was. acquired by warranty deed, in which a reference was made to restrictions; the title came from one McGrath, who had formerly acquired the title from the allotters, with the full restrictions set out in or in connection with the deed transferring the title.
    The proposed allotment, which was never evidenced by a recorded plat, consisted of certain lots described in three groups, to-wit, sublots numbered 2 to 31, inclusive ; sublots numbered 1 and 32; and Block A. Plaintiff’s Exhibit “A” is a map showing the various locations, a reproduction of which map is set forth at page 49, herein.
    The facts found by the court of appeals are as follows:
    
      
      
    
    
      “1. In 1917 The Fowler-Worman-Kelley Company owned a tract of land between Lake Avenue and Lake Erie in the City of Lakewood, Ohio, laid out in a subdivision known as The Homewood Park Subdivision. No plat of this allotment was ever recorded, but the subdivision as described by the allotment company in its deeds, consists of a parcel of land located in the City of Lakewood extending from Lake Avenue between parallel lines northerly to Lake Erie and is divided into three (3) general groups consisting,
    “1. Of a block [tract] of land along Lake Ene designated as Lot [Block] A.
    “2. Of 30 sublots on both sides of Homewood Drive, Nos. 2 to 31, both inclusive.
    “3. Of two sublots, having a frontage on both Lake Avenue and Homewood Drive, Nos. 1 and 32, being located respectively at the northwesterly and the northeasterly corners of Lake Avenue and Home-wood Drive.
    “The title to all this land has gone out of The Fowler-Worman-Kelley Company.
    “2. Sublots Nos. 1 and 32 were each 115.91 feet on Homewood Drive by 161.55 feet on Lake Avenue. Lot No. 32 was originally sold and deeded by The Fowler-Worman-Kelley Company to Marie C. Mc-Grath by deed dated Sept. 11, 1917, and recorded in Vol. 1972, page 355 of Cuyahoga County Records. Said deed contains the following restrictions:
    “ ‘Said allotment shall be subject to the following restrictions and in the use of the premises hereby conveyed, grantee shall observe said restrictions. Said proposed allotment consists of Block A, being a parcel of land running along the shore of Lake Brie and from the easterly to the westerly line of said allotment, and being about 200 feet on the westerly line and about 230 feet deep on the easterly line; of sublots Nos. 2 to 31 inclusive, of which sublots Nos. 3, 4, 5, 8 to 25 inclusive, 28, 29 and 30 are sublots having a frontage of about 50 feet each on the easterly and westerly sides of,Homewood Drive, proposed, sublots Nos. 2 and 31, having a frontage of 60 feet on the westerly and easterly sides respectively of a proposed Homewood Drive and sublots Nos. 6, 7, 26 and 27, having a frontage of about 75 feet upon Homewood Drive, proposed, being comer lots; and of sublots Nos. 1 and 32 being parcels of land at the northwesterly and northeasterly comers respectively of Lake Avenue and Homewood Drive, propósed.
    “ ‘No apartments, double-house, two-family house, terraces or business buildings shall be erected upon any land in said allotment.
    ‘ ‘ ‘ Said allotment shall be used for residence pux-poses only and such residences shall be private, single residences and shall not be used for boarding house purposes.
    “ ‘No residence or building of any type shall be erected upon said land during a period of ten years from and after August 1, 1916, unless the exterior plans thereof shall have been first approved by the grantor, and likewise the grade of any lot shall be subject to the approval of the grantor, but such approval shall not be unreasonably withheld, but the right of approval herein reserved to the Grantor shall be exercised only for the purpose of preventing the erection of unsightly residences and garages upon said allotment.
    
      “ ‘No barns or sheds for animals shall be erected upon any land in said allotment, not excluding thereby private automobile garages.
    “ ‘No spirituous, vinous, or fermented liquors shall be manufactured or sold either at wholesale or retail on said premises.
    “ ‘Upon sublots Nos. 2 and 31 inclusive, no residence shall be erected upon any sublot having a fair cost and value of less than $5,000 and any such residences shall not be set nearer the inside sidewalk line than 50 feet from the house line exclusive of any porch line nor nearer than five feet from the north line or five feet from the south lot line. Automobile garages shall not be erected, placed, or suffered to remain on any sublot fronting on Homewood Drive within ten feet of the rear lot line thereof except as hereinafter provided for sublots Nos. 7 to 16 inclusive. Not more than one residence building shall occupy any one of such sublots, but such restrictions shall not prevent the changing of lot lines by sale or purchase or both of adjacent lots or any parts thereof, provided that no such residence shall occupy or be erected upon any parcel of land of less width than 50 feet exclusive of any other residence. No automobile garage shall be erected upon sublots Nos. 7 to 16 inclusive except attached to and in connection with the residence erected thereupon.
    “ ‘Upon sublots 1 and 32 no residence shall be erected having a fair cost and value of less than $6,000, but said building must be set back at least 50 feet from the inside sidewalk line of Homewood Drive to the building line, exclusive of any porch lines, and not less than 35 feet from the inside sidewalk line of Lake Avenne to -the said building line or any window projection and not less than 5 feet from the northerly and easterly lines. No automobile garages shall be erected upon either sublot No. 1 or sublot No. 32 except attached to and in connection with the residence erected thereon and made a part thereof.
    “ ‘Upon block A no residence shall be erected having a fair cost and value of less than $6,000. Not more than four residences may be erected thereon and no such residence shall occupy or be erected upon any parcel of land of less width than 100 feet, which width may include in the case of each parcel of land immediately east and west of the common right of way hereinbefore granted one-half of the width of said common right of way. Any residence erected upon any part of block A shall be set back at least 50 feet from the northerly line of sublots 17 and 16 provided that minor projection of any such residence may extend over said line not more than 5 feet and any such dwelling shall be set back( at least 15 feet from the side lot lines of block A and if subdivided into two or more parcels not less than 10 feet from the other side lot lines formed by such subdivision. Such residence shall be set back at least 50 feet from the lake line but measured however, from the intersection of the lake line with the westerly line of said block A. Any automobile garage erected upon block A, shall be connected with and attached to the residence thereon and be a part thereof. No fence shall be erected upon any part of block A other than ornamental hedge fences or low enclosing fences which do not interfere with the view of the lake from the other sublots in said allotment.
    “ ‘The above enumerated restrictions, rights, reservations, limitations, agreements, covenants and conditions shall be deemed as covenants and not as conditions hereof, and shall run with the land and shall be binding until 1950, but the liquor restrictions shall be perpetual. ’
    “Said Marie C. McGrath subsequently conveyed said sublot No. 32 to Lizzie M. Heil, who conveyed the easterly 66.55 feet of said sublot No. 32 to the defendant Loretta I. Hitz. Said Lizzie M. Heil still retains and owns the westerly 95 feet of sublot No. 32, and has erected a house thereon fronting on Homewood Drive which observes and fulfills all property restrictions.
    “3. Six of the sublots in said allotment, Nos. 4, 5, 10, 11, 24 and 26 were deeded without imposing any restrictions whatsoever. Sublot No. 19 was deeded subject to existing restrictions. All the remainder of said lots were deeded by The FowlerWorman-Kelley Co., subject to the same restrictions as were included in the original deed of sublot No. 32. Sublots Nos. 4, 5, 10 and 11 on which no restrictions appear in the original deeds, were sold by a receiver for The Fowler-Worman-Kelley Co., pursuant to authority of court granted in that behalf and thereafter The Fowler-Worman-Kelley Co., gave quit-claim deeds for said sublots to the respective purchasers thereof, which contained no restrictions, but the evidence shows that all such sublots have been built upon and improved, and all said restrictions complied with by the owners of the same in making such improvements and buildings.
    
      “4. Said allotment was advertised and sold as a restricted single residence allotment.
    “5. The defendant, Loretta I. Hitz, after acquiring her portion of sublot No. 32 commenced the erection thereon of a single residence facing Lake Avenue, with garage attached, the estimated cost thereof to be $20,000 or more, which complies with said restrictions except as hereinbefore set forth.
    “6. The defendant, Loretta I. Hitz, through her husband A. S. Hitz, acting as her agent before purchasing her portion of said sublot No. 32 had an abstract of said lot which contained a copy of the restrictions in the original deed and said defendant knew of the restrictions and consulted an attorney about them before the property was purchased. About the middle of March, 1920, the defendant Loretta I. Hitz, began digging a cellar with a view to erecting a house on the rear end of lot No. 32 facing the Avenue. On April 12, 1920, before the cellar was completed, the owners of other property in the allotment notified her by letter and personally of the restrictions on the property.”
    And as its conclusions of law from the above facts the court finds:
    “1. That sublot No. 32 by virtue of the foregoing restrictions is restricted to the building thereon of a single residence to face Homewood Drive and that such residence be set back 50 feet from the inside sidewalk line of Homewood Drive, and that the defendant, Loretta I. Hitz, in attempting- to build her house on that portion of sublot No. 32 owned by her, is violating said restrictions in that one house has already been built on said sublot No. 32 and the proposed house does not face Homewood Drive.
    
      
      “2. The plaintiff and the various cross-petitioners herein are entitled to the relief prayed for in their respective petition and cross-petitions.”
    
      Messrs. Niman, Grossman, Buss & Holliday and Messrs. Holding, Masten, Duncan & Leckie, for plaintiff in error.
    
      Messrs. Smith, Olds & Smith; Messrs. Guthery & Guthery and Messrs. Holding, Masten, Duncan & Leckie, for defendants in error.
   Hough, J.

Inasmuch as the title of the defendant below came by warranty deed without restriction it was necessary to show notice or knowledge of the restrictions on her part, and the court of appeals specifically and properly found that Mrs. Hitz had such knowledge when she purchased the 66 feet, plus, fronting on Lake Avenue, and being the east part of sublot No. 32. The owner of the remaining or west part of said sublot, who had theretofore owned the whole, had built a single residence on that part which she had retained, being on the corner of Homewood Drive and Lake Avenue.

The court of appeals found that that house was erected fronting on Homewood Drive. From an examination of the record we find no competent evidence to sustain such a finding, and the photographic exhibits made a part of the record controvert that finding. An inspection of the photographs shows that this house either faces on both streets or upon Lake Avenue. This finding, however, is not especially important, for the reason that the case turns upon the legal interpretation of the restrictions used by the allotters, and we are governed by those settled rules of construction which govern like cases.

The first and most fundamental of these rules of course is that of arriving at the intention of the parties from the language used.

The second is that the language be construed strictly against the restrictions and in favor of the free use of property. This is a settled rule of construction, based upon the old principle that restrictions are not favored in the law. At the outset of the discussion on the subject of interpretation of the language used in the restrictions, it is noticeable that the allotters divided the territory to be allotted into three general groups, and designated them as follows: 1. Thirty sublots numbered from 2 to 31, inclusive, upon either side of and fronting on Home-wood Drive. 2. Two sublots of larger dimensions and located on opposite corners of Lake Avenue and Homewood Drive, and numbered 1 and 32, respectively. 3. A block of land along Lake Erie designated as Block A.

With these general groupings furnishing the framework of the restrictive instrument, the allotters proceeded first to set out general terms of restriction applying to the entire allotment, and then in the order named above to attach special terms of restriction to each of the groups.

We have then, applying to each group: first, the general terms applying to all, and second, those special terms that apply specifically to that group and to nothing else. Under this method used by the allotters, there then apply to sublot No. 32 the following general restrictions:

“No apartments, double house, two-family house, terraces or business buildings shall be erected upon any land in said allotment.
“Said allotment shall be used for residence purposes only and such residences shall be private, single residences and shall not be used for boarding house purposes.
“No residence or building of any type shall be erected upon said land during a period of ten years from and after August 1, 1916, unless the exterior plans thereof shall have been first approved by the grantor, and likewise the grade of any lot shall be subject to the approval of the grantor, but such approval shall not be unreasonably withheld, but the right of approval herein reserved to the Grantor shall be exercised only for the purpose of preventing the erection of unsightly residences and garages upon said allotment.
“No barns or sheds for animals shall be erected upon any land in said allotment, not excluding thereby private automobile garages.
“No spirituous, vinous or fermented liquors shall be manufactured or sold, either at wholesale or retail on said premises.”

The above represents all the restrictions in general terms, and it is conceded that the plaintiff in error has not violated any of those terms. The special restrictions applying to this sublot are as follows:

“Upon sublots 1 and 32 no residence shall be erected having a fair cost and value of less than $6,000, but said building must be set back at least 50 feet from the inside sidewalk line of Homewood Drive to the building line, exclusive of any porch lines, and not less than 35 feet from the inside sidewalk line of Lake Avenue to the said building line or any window projection and not less than 5 feet from the northerly and easterly lines. No automobile garages shall be erected upon either sublot No. 1 or sublot No. 32 except attached to and in connection with the residence erected thereon and made a part thereof.”

The above represents all the special restrictions that can be found in the restrictive instrument applying to sublot No. 32, and it is conceded that the building in process of erection by Mrs. Hitz upon the east part of that sublot calls for an expenditure of more than $6,000; is set back from the inside sidewalk line of Lake Avenue more than 35 feet, and will be not less than 5 feet from the northerly and easterly lot line; that the garage, according to the plans, is to be erected in connection with the residence ; and that it is a single residence.

Counsel for the defendants in error claim that because the word “residence” and the word “building” are used in this special restriction in the singular as distinguished from the plural sense, this would lead to the legal construction that only one single residence may be erected upon sublot No. 32, and opposing counsel advance the argument that if this is true, and the construction of these words in the singular sense means that only one single residence may be placed upon this sublot, in that event the same method of construction must lead to the conclusion that only one single residence may be erected on'both sublots Nos. 1 and 32, and that that would be a violent presumption for the reason that sublots 1 and 32 are located on opposite sides of Homewood Drive.

If the construction contended for by counsel for defendants in error is to obtain, we think there is considerable force in the latter argument. To hold that only one single residence may be placed upon sublots Nos. 1 and 32 taken together would be absurd in the face of the manifest intent of the allotters in connection with the project which they were desirous of carrying out. The only logical construction that can be placed upon the use of the word “residence” is that it is used in the abstract, and of course that implies a like construction of the word “building,” inasmuch as it unquestionably refers, to “residence.”

It is apparent that the language used by the allotters expressed the intention that no residence should be erected upon sublot No. 1, and none upon sublot No. 32, having a fair cost and value of less than $6,000, and that if such residence faced on Homewood Drive it must be set back at least 50 feet, and if on Lake Avenue at least 35 feet, from the inside sidewalk lines, respectively; and, if the several restrictive specifications are complied with, there is no inhibition against the erection of more than one single residence upon sublot No. 32.

The rules of construction in like cases have been fairly covered and laid down in recent decisions of this court, and pronouncements made in Hunt v. Held, 90 Ohio St., 280, Kiley v. Hall, 96 Ohio St., 374, and Adams v. Donovan, 97 Ohio St., 83, are hereby approved, and are found to be in no wise in conflict with the view adopted in this case.

The conclusions of law arrived at by the court of appeals are erroneous. The judgment of that court is hereby reversed and the judgment of the common pleas court is affirmed.

Judgment reversed.

Marshall, C. J., Johnson, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  