I dissent. The tract known as "Wellington Square," lying along the Wellington Road about five miles from the heart of the city of Los Angeles, was laid out, subdivided, and sold about fourteen years ago as a restricted residence district, to be used for residence purposes only, as expressed in the deeds to purchasers of residence lots therein. These deeds contained the covenant "That no apartment house, flat, lodging house, store, hotel or any other than a first-class private residence, with or without the customary outbuildings, including a private stable or garage, shall be erected, placed or permitted on said land or any part thereof." There were further specific restrictions touching the minimum cost of residences to be erected therein, their distance from the front line of the premises, regulating the location of outbuildings and the height of hedges, fences, copings or walls, and prohibiting signboards, advertising boards or banners within said restricted area. The lots and tracts of land therein were sold to many purchasers, subject to the foregoing restrictions of the deeds of each, including the defendant herein, and these purchasers or their transferees have during the intervening years proceeded to build their residences and homes thereon and therein until practically the entire area thereof has been built up residentially, and until, as a matter of common knowledge, and as the exhibits and photographs appended to the transcript herein disclose, Wellington Square has become and now is one of the most beautiful and attractive exclusively residence areas within the city of Los Angeles. Heretofore and until this defendant conceived the idea that it would be more profitable to him to violate than to continue to comply with the covenants, conditions, and restrictions upon which he was permitted to purchase his lot within said area, no other attempted breach thereof has occurred. His sole excuse for his breach of the express conditions, covenants, and restrictions of his grant is that the *Page 751 lands and lots of an adjoining tract across the street from one side of this restricted area, and which constitutes an unrestricted area, are being devoted in part to business purposes. There is no evidence in the case showing that the other three sides of this restricted subdivision have been invaded by business or are other than residential in character, nor is there any evidence that the unrestricted tract on Adams Street opposite the defendant's lot has been wholly devoted to business establishments. In fact, the evidence is to the contrary. We have the condition as shown by the practically undisputed evidence wherein the defendant, because some places of business have been erected in an unrestricted area across the street from him, claims the right to put a store upon his lot within the restricted area, in violation of the covenants and restrictions of his deed, the effect of which, if permitted, will inevitably be to open the way to such an invasion of Wellington Square by stores, garages, service stations, apartment and lodging houses and other forbidden structures and uses as would ere long entirely destroy the restrictive covenants upon which residential owners of property within this area purchased and have improved and enjoyed their restrictive holdings therein. No case that has been cited in the main opinion and none that I have seen has gone to this extent before in permitting a single owner within a restricted area to not only violate his own covenants but to destroy the essential covenants, prohibitions, and securities of his co-owners simply because other persons have put stores and shops in an unrestricted area across the street from his lot and thus made it more profitable to himself to put his lot to like uses in violation of the terms, covenants, and restrictions of his deed. It is just this to which the main opinion herein gives its sanction. The case of Jackson v. Stevenson, 156 Mass. 496 [32 Am. St. Rep. 476, 31 N.E. 691], from which the main opinion quotes as sustaining its doctrine, does not support it. It refers to the "present use of the whole neighborhood for business" and to the loss by the "locality of its residential character." The term "locality" as employed in the quoted portion of said case evidently means "the restricted locality." This case has no semblance as to its facts to the case at bar. The case ofTrustees, etc., v. Thacher is equally inapplicable to the instant *Page 752 situation, since the court found not only that "the general current of business affairs had reached and covered the entire premises," but also found the construction and operation of an elevated railway alongside the restricted district, which had the effect of producing a large depreciation in rents and frequent vacancies. The case of Miles v. Clark, 44 Cal.App. 539, 549 [187 P. 167], states, in my opinion, the correct rule as to the effect to be given to changes in the use of property in the neighborhood where no radical change in the restricted tract is shown. In that case, as in this, the tract in question had been subdivided and sold under similar restrictions contained in the conveyances to purchasers who had built upon and occupied their respective holdings as strictly residential properties. In that case, as in this, the defendants were found to be holding their property subject to such restrictions. In that case, as in this, the defendants were seeking to avoid the binding force of such restrictions and to put their property to business uses, upon the claim that the character of other property in the vicinity of the tract had so changed through the erection of apartment houses and business establishments that it would be inequitable to enforce such restrictions against a like use of the defendants' property. The appellate court dealing with that situation said: "The fact that apart from and surrounding the tract some business has grown up and that the land has become more valuable in consequence in no manner entitles the defendants to be relieved from the restrictions they have created. This condition is but the natural result of the improvement of the various tracts, and the fact that the property may have become more valuable thereby for business purposes is immaterial. (Citing cases.) Courts in such cases are not controlled exclusively by money value, but may protect a home." The fundamental error of the trial court as to the rule applicable to cases of this character lies in its holding that when the property of the individual owner has been so far affected by conditions existing in contiguous unrestricted territory as to be less valuable to him for residential than for business purposes he is no longer bound by the conditions and restrictions of his deed. Such is not the rule under the practically unanimous current of authority which holds that it is only when the character of the restricted *Page 753 region as a whole so far changes as to render it no longer adaptable to restricted residential uses that the right to be relieved from such restrictions can arise. There is no finding in this case that such a condition exists within the restricted area as a whole, but only as to the eight lots therein fronting on Adams Street. As to all the rest of the tract the finding is that "said eight lots are the only lots in said tract which are affected by the changed conditions on said Adams Street." It follows that the remaining 389 lots in the Wellington Square tract still retain their residential character, but have lost the restrictive protection. Such is the inevitable result of the decision of the trial court, to which the majority opinion herein lends its approval. The principles laid down in Martin v.Holm, 197 Cal. 733 [242 P. 718], touching the sacredness of the reciprocal covenants of owners in restricted areas should be given application to the case at bar, and so applied would operate to prevent the single owner of a lot in this restricted area from doing that with his property which will eventuate in the destruction of the restrictive benefits and protection of all of his co-owners therein. That such will be the result if this judgment is to stand was aptly indicated by Mr. Justice Lennon in the case of Miller v. Board of Public Works, 195 Cal. 477 [234 P. 381], wherein he points out that once the restrictive covenants of the home owner are broken down his only recourse is to move to another location and by so doing be compelled to abandon the benefits emanating from a permanent home site. Such, in my opinion, would be the effect of the affirmance of the judgment herein.
The trial court fell into another fundamental error which the main opinion herein would perpetuate. It is the error that the plaintiffs, seeking to enforce a building restriction against the defendant equally bound to conform to its covenant, but refusing to do so, must allege and prove damage before they can obtain an injunctive remedy. The rule is just the contrary. The damage resulting to the plaintiffs and their co-owners in the restricted area from an unjustified breach of covenants such as these is of necessity both irremediable and impossible of ascertainment, since they relate to the comfortable enjoyment of homes secluded from business in the restricted region. The trial court was, therefore, in error in denying the plaintiffs injunctive relief upon *Page 754 the ground that no damage had been shown. Such a conclusion was contrary to its own finding upon the undisputed evidence herein that the residential character of this restricted area as a whole had not undergone a change. It follows necessarily that for the foregoing fundamental errors the judgment herein should be reversed.
Curtis, J., and Waste, C.J., concurred.
Rehearing denied.