CLEVELAND REALTY COMPANY
v.
Helen S. HOBBS et al.
No. 166.
Supreme Court of North Carolina.
March 18, 1964.*33 Horn, West & Horn, Shelby, for plaintiffs appellants.
Horace Kennedy, John J. Mahoney, Jr., and L. Lyndon Hobbs, Shelby, for defendants appellees.
MOORE, Justice.
The trial judge concluded as a matter of law "that since the * * * restrictions which are contained in the deed from Cleveland Realty Company to Cleveland Country Club, Inc., did not appear in either the granting clause or in the habendum clause, but were merely contained therein after the description of the property being conveyed, * * * such restrictions were of no effect and were invalid, and as such, amounted to mere surplusage." Appellants contend that this is error, and we agree.
The judge probably had in mind the following well established rule of law: "When the granting clause in a deed to real property conveys an unqualified fee and the habendum contains no limitation on the fee thus conveyed and a fee simple title is warranted in the covenants of title, any additional clause or provision repugnant thereto and not by reference made a part thereof, inserted in the instrument as a part of, or following the description of the property conveyed, or elsewhere other than in the granting or habendum clause, which tends to delimit the estate thus conveyed, will be deemed mere surplusage without force or effect." Jeffries v. Parker, 236 N.C. 756, 757-758, 73 S.E.2d 783, 784; Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869; Oxendine v. Lewis, 252 N.C. 669, 114 S.E.2d 706. But this rule of law does not apply to the restrictions in the deed to the Country Club. These restrictions are not repugnant to and do not delimit the fee; they affect the use to which the property may be put, but do not tend to debase the fee simple quality of the estate or to make the estate subject to a lesser estate. Furthermore, the restrictions are by reference made a part of the consideration for *34 the conveyance, in these words: "* * * in consideration of One Hundred ($100.00) Dollars and the stipulations hereinafter contained * * *."
The holding in Barrier v. Randolph, 260 N.C. 741, 133 S.E.2d 655, is decisive of this question. In the deed in that case the granting, habendum and warranty clauses are sufficient to convey a fee simple, and after the description but before the habendum clause it is stated: "And this Deed is made subject to the following conditions, reservations, and restrictions which constitute covenants running with the land and binding upon the parties hereto, their heirs and assigns, to wit" (here the restrictions are set out in numbered paragraphs, and among other things restricting the property to residential use and specifying lot sizes and location, cost and composition of residences to be constructed thereon). Bobbitt, J., speaking for a unanimous Court, rejected the contention that the restrictions are repugnant to the fee simple quality of the estate, and said:
"`In the interpretation of a deed, the intention of the grantor or grantors must be gathered from the whole instrument and every part thereof given effect, unless it contains conflicting provisions which are irreconcilable or a provision which is contrary to public policy or runs counter to some rule of law.' Lackey v. Hamlet City Board of Education, 258 N.C. 460, 462, 128 S.E.2d 806, 808, and cases cited; Rouse v. Strickland, 260 N.C. 491, 495, 133 S.E.2d 151 * * *.
"The sufficiency of the * * * deed as a conveyance in fee simple * * * is not controverted. There is no contention it conveyed a life estate or other estate less than a fee simple.
"In express terms, the * * * deed provides that it is made subject to the conditions, reservations and restrictions therein set forth and that such conditions, reservations and restrictions constitute covenants. * * * The intention of the grantors that such conveyance is made subject to such conditions, reservations and restrictions is manifest. Moreover, `(i)t is a settled principle of law that a grantee who accepts a deed poll containing covenants or conditions to be performed by him as the consideration of the grant, becomes bound for their performance, although he does not execute the deed as a party.' Maynard v. Moore, 76 N.C. 158, 165; Herring v. Wallace Lumber Co., 163 N.C. 481, 485, 79 S.E. 876; Williams v. Joines, 228 N.C. 141, 143, 44 S.E.2d 738." (Emphasis added).
"* * * (T)he conditions, reservations and restrictions set forth in the * * * deed are not void ab initio on the ground they are repugnant to the granting, habendum and warranty clauses of said deed."
In the instant case, if the Realty Company had the legal right to make the conveyance to the Country Club and to impose the restrictions which are set out in the deed, it has the right to enforce the restrictions as against the Country Club and its assignees and successors in title. The servitude imposed by restrictive covenants in a deed is a species of incorporeal right which runs with the land and is binding upon mesne purchasers from the grantor, even though the restrictions are not inserted in subsequent deeds. Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344.
A collection of leading American cases dealing with the question of whether the maintenance, use, or grant of a right of way over restricted property is a violation of a restrictive covenant limiting the use of such property is found in 25 A.L.R.2d at page 904. A survey of those cases has led the editor to conclude:
"Generally speaking, the cases disclose that the courts are inclined to hold that the maintenance, use, or grant of a *35 right of way across property restricted in its use is a violation of the restriction if such maintenance, use, or grant seems to be inconsistent with the parties' intention in creating or agreeing to the restriction and with the objection sought to be thereby accomplished, while if it does not interfere with the carrying out of the parties' intention and the purpose of the restriction, it will not be held to be a violation."
To the same effect is the text in 14 Am. Jur., Covenants, Conditions and Restrictions, s. 255, p. 635.
Applying these principles, this Court held in Starmount Co. v. Greensboro Memorial Park, 233 N.C. 613, 65 S.E.2d 134, that a purchaser of a lot in a subdivision restricted to residential purposes could not construct a roadway across the lot for access to a business or commercial establishment, a commercial cemetery. The Court said: "Since it took the * * * tract with notice of the restrictive stipulations, the defendant can not equitably refuse to perform them. * * * As an original party to the restrictive covenants, the plaintiff (developer of the subdivision) is entitled to an injunction to restrain the threatened breach." Further: "Such use would violate the restrictions in question for it would be tantamount to dedicating the * * * tract to a prohibited business or commercial purpose. Our conclusion harmonizes with the decisions of the courts of other jurisdictions which have been confronted by the same problem."
The roadway which the Hobbs propose to construct and maintain would be inconsistent with and violative of the restrictions which the Realty Company undertook to impose. The golf course was restricted to recreational uses. It was not the intention of the Realty Company that it should be even a limited thoroughfare for public travel and have a roadway or roadways thereon incidental to the development of residential subdivisions by independent developers of lands outside the Cleveland Springs Estate, and thereby become a consideration and inducement to prospective purchasers in independent subdivisions. It was undoubtedly contemplated that the golf course would be a relatively private and secluded area where those entitled thereto, children and adults, might enjoy recreational activities without the dangers, interruptions and molestation of vehicular traffic.
The court below concluded "that the Cleveland Realty Company * * * did effect a valid dedication of the part of their property being used as a nine-hole golf course, to the owners of the lots in the neighborhood."
The evidence of the dedication is the inscription on the plat of the Cleveland Springs Estates, to wit: "We further dedicate the golf links and playgrounds, and the land occupied by same as indicated on the plat, for such use and pleasure of the owners of the lots, and the owners of other reserves shown on the plat and to the owners of the lots and the reserves and land in any subsequent Cleveland Springs Estates subdivision which may consist of lands now owned by Cleveland Springs Company or any subsequently acquired lands in Cleveland County, N. C." The Cleveland Realty Company acquired title to the Cleveland Springs Estate and the lands of Cleveland Springs Company, and recorded the plat and sold lots in the Cleveland Springs Estate Development with reference to the plat. The evidence does not support the conclusion that the golf course was dedicated "to the owners of the lots in the neighborhood." The purported dedication is to the owners of lots and lands of the Cleveland Springs Estate development or developments.
Where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into streets, lots, parks and playgrounds, a purchaser of a lot or lots acquires the right to have the streets, parks and playgrounds kept open for his reasonable use, and this *36 right is not subject to revocation except by agreement. Steadman v. Pinetops, 251 N.C. 509, 112 S.E.2d 102; Conrad v. West End Hotel & Land Company, 126 N.C. 776, 36 S.E. 282. It is said that such streets, parks and playgrounds are dedicated to the use of lot owners in the development. In a strict sense it is not a dedication, for a dedication must be made to the public and not to a part of the public. Jackson v. Gastonia, 246 N.C. 404, 98 S.E.2d 444. It is a right in the nature of an easement appurtenant. Whether it be called an easement or a dedication, the right of the lot owners to the use of the streets, parks and playgrounds may not be extinguished, altered or diminished except by agreement or estoppel. Irwin v. Charlotte, 193 N.C. 109, 136 S.E. 368; Todd v. White, 246 N.C. 59, 97 S.E.2d 439. This is true because the existence of the right was an inducement to and a part of the consideration for the purchase of the lots. Hughes v. Clark, 134 N.C. 457, 46 S.E. 956, 47 S.E. 462; Conrad v. West End Hotel & Land Co., supra. Thus, a street, park or playground may not be reduced in size or put to any use which conflicts with the purpose for which it was dedicated. Home Real Estate Loan & Insurance Co. v. Carolina Beach, 216 N.C. 778, 7 S.E.2d 13; Conrad v. West End Hotel & Land Co., supra.
In the Conrad case defendant owned a tract of land in the suburbs of Winston, laid it off into lots, with streets and a public square or court, and recorded a map of the layout. Plaintiffs bought lots in the subdivision by deed referring to the map. Defendant thereafter attempted to sell off parts of the square or court and planned to narrow and close a part of the streets around the square. Plaintiffs instituted an action for a permanent injunction. The trial court decreed that defendant be permanently enjoined, and this Court affirmed, saying: "We think * * * those pieces of land which were marked on such a plat as squares or courts or parks, and the streets and public grounds designated on such a map should forever be open to the purchasers * * *." (Citing authorities). Further: "It is immaterial whether the public authorities of the city or county had formally accepted the dedication of the court. The plaintiffs have been induced to buy under the map and plat, and the sale was based, not merely on the price paid for the lots, but there was the further consideration that the streets and public grounds designated on the map should forever be open to the purchasers and their assigns."
If, as the court below declared and appellees contend, the golf course was irrevocably dedicated, the principles declared in the Conrad case apply here. The map of Cleveland Springs Estate shows no roadway between the seventh green and the eighth tee, and no roadways extending across the golf course to property outside the subdivision. To permit a roadway, open to public use, to be constructed, maintained and used over and across land dedicated for the purpose of a golf course would amount to a dedication of the land to a purpose in conflict with that for which it was originally dedicated. If it is permissible in this instance, we see no reason why a roadway, open to the public, could not be maintained between each green and tee and outside each fairway. What was said above with reference to the violation of the restrictions is equally applicable on the question of conflict with the purposes of the dedication.
The court below concluded that Cleveland Realty Company dedicated the golf course "and thereby divested itself of any right, title or interest as would later permit it to impose restrictive covenants with respect to the golf links, or to support the same in equity; * * * that there was an expressed dedication on the plat * * * and such dedication was and is irrevocable, and the said Cleveland Realty Company * * * did not have the right to further restrict or in any way alienate the property occupied by the golf links subsequent to such dedication in 1926."
*37 When considered in the light of our holdings above, these conclusions are immaterial and do not support the judgment or the contentions of appellees. We express no opinion as to whether the conclusions are legally correct or erroneous. Conceivably controversies may arise between lot owners, the Realty Company and the Country Club which may require a determination of some or all of the matters involved in the conclusions set out in the preceding paragraph. But no such determination is required here.
It is stipulated that prior to the recordation of the map in 1926 the Realty Company owned the Cleveland Springs Estate land, including the golf course land, in fee and unrestricted. If there was no valid dedication of the golf course, the Realty Company had the right to convey the land on which the golf course is located to the Country Club and to place the restrictions thereon. As stated above, Hobbs' claim of easement for a road over and across the golf course is repugnant to and violates the restrictions.
If the dedication of the golf course is valid, and if such dedication divested the Realty Company of the right to "in any way alienate the property occupied by the golf links," defendants Hobbs acquired nothing by the purported grant of easement from the Country Club. Obviously, if the Realty Company could not alienate the property, the Country Club acquired nothing by virtue of its deed from the Realty Company and had nothing it could convey to Hobbs.
The court's conclusions appear to be ambiguous and conflicting. At one point they seem to indicate that the Realty Company had the right to convey the golf course property to the Country Club, but by reason of the valid and irrevocable dedication could not impose further restrictions. If this is true the Hobbs claim of easement is, as we have already stated, repugnant to and in violation of the purpose of the dedication, and the owners of the lots and lands in the Cleveland Springs Estate Development have the right to restrain the construction and maintenance of the road over and upon the golf course.
The judgment below is
Reversed.