There is no doubt that there was a general plan for the benefit of all lot owners, and that the defendant was aware of it. The facts were recited in the deeds in his chain of title, with which, of course, the law would charge him with notice. Therefore, the element that caused a division in the court on the merits in Dillon v. Gaker, supra, does not exist in this case. There was no disagreement in that case as to the meaning of the words employed. It is on that point that the division exists in this case.
Certainly a reading of the restrictive provisions in these deeds leaves one in doubt as to the exact limits of the restrictions. Is the use limited to residence purposes? That cannot be answered dogmatically in the *Page 554 affirmative. It requires positive language for such an attitude and such language is not found in these provisions.
If the use is so limited, can it be said that no more than one dwelling house adapted for use by one family only is permitted? It seems to me that that cannot be asserted confidently.
There are other limitations upon the use that are clearly expressed — no improvement costing less than $7,500, plan for exterior must be approved by common grantor, the front line of building must be 40 feet back from street, not more than one residence or building, other than garage or necessary outbuilding, on a single lot, etc. These are substantial restrictions that clearly appear, and their enforcement would preserve a certain outward symmetry desired, which, coupled with the other restrictions as to use, would preserve it as a desirable neighborhood. All this could be accomplished without straining the language.
It seems to me that to place further limitations is enlarging the meaning of the language beyond its natural import and violates the well known rule of construction which requires in cases of doubt to decide in favor of the larger use of property.
For these reasons, I do not concur in the judgment.
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