dissenting:
I regret that I cannot concur in the opinion of the majority of the court in this case. I would affirm the decree granting the injunction. It appears from the record that one of the six lot owning complainants, F. E. Page, formerly owned the lot upon which the court has held that an apartment house may be built. In January, 1946, said complainant Page conveyed the lot to one Wood, who in June, *841946, conveyed to one Berry who has sold the lot to appellant Jernigan. Complainants Page and Alley each owns a lot directly across the street from the one here involved. Complainant Capps owns one adjoining same. In the deeds from Page to Wood to Berry there was contained a special provision not common to all other lots in the subdivision. It was a covenant running with the land that “the use of the land sold shall be restricted to residential purposes,” which I take to mean that it may not be used for any other purpose. The mere fact that the apartment house to be constructed on the lot is intended to be used for residential purposes does not amount to restricting it to that use. An orphanage is used for residential purposes though it is also a charitable institution. A college dormitory or a nurses home, in addition to their use for residential purposes, are also adjuncts to other institutions. Even a jail is used for involuntary residential purposes but it is likewise a prison. And so an apartment house may be used for residential purposes, but at the same time it usually constitutes a business enterprise. As I construe the court’s opinion, it is permissible to erect an apartment house on the lot containing four apartments. This would have the effect of permanently collecting quite a large number of people in the building directly across the street from complainants Page and Alley, and adjoining Capps. If a four apartment building does not violate the restriction, I do not see how a ten story one can be brought within its terms. It is merely a question of size or degree. It is a matter of common knowledge that the operation of an apartment house is a business enterprise, the larger ones requiring the constant employment of a manager, desk clerk, inspectors, elevator operators, mechanics, plumbers and janitors. Such an operation involves the soot and smoke incident to a large heating plant, as well as the noise from numerous children and adults, and from many phonograph and radio instruments. The large building also obstructs the sunlight and circulation of the air of neighboring properties. These *85things constitute serious disturbances to the occupants of adjacent homes.
In a case of this kind I do not think the interpretation of similar language in restrictive covenants by the courts of other states is a helpful guide. The question here is what was the intention of the grantors in these particular deeds of conveyance here under consideration. This can more appropriately be determined in the light of local conditions. The same language might well have a different significance in Norfolk, Richmond or Roanoke, all lying in the same state. It might even be properly given a different connotation when used in connection with different suburban developments of the same city. The local judge is in a much better position to arrive at the intention of the parties with respect to each of them than are the judges of courts of other states. There are many matters of common knowledge, such as the type, nature, and character of a development, of which he may and frequently does take judicial notice. Norfolk, etc., R. Co. v. Richmond Cedar Works, 160 Va. 790, 170 S. E. 5. In the case at bar the learned judge of the circuit court probably concluded that, under the agreed facts and the commonly known conditions surrounding this subdivision, the restrictions were intended to insure to the other owners of lots who have built or may build their residences thereon the enjoyment of that privacy and quiet which many people regard as indispensable to a desirable home. In my opinion, the language of the covenants appearing in the footnote of the majority opinion taken in connection with the special restriction applicable to this lot fully justified such a conclusion unless it was incompatible with the general setting and neighborhood conditions. There is nothing in the record to indicate any such incompatibility. In its decision on this appeal, however, the majority of the court is giving precedence to what other judges in other states under different circumstances, conditions, and customs have thought similar language meant. The views of the local judge familiar with local conditions have been discarded. In the absence of *86any evidence on the subject of the intention of the grantors in the deed, I think his construction of the instrument, which is entitled to a presumption of correctness, should be followed by us.
The opinion of the court intimates that we are limited in our interpretation of the restriction in the case at bar by our opinion in Schwarzschild v. Welborne, 186 Va. 1052, 45 S. E. (2d) 152. I do not think so. The only restriction there involved was a prohibition against placing on a lot any building except a “dwelling”. There was no express restriction whatsoever as to the use of the “dwelling”. But in spite of the rule of strict construction against the grantor which is invoked in the majority opinion here, we extended the effect of the restriction in that case, by implication,- to prohibit the use of the building for any other than dwelling purposes. Even in that case we held that the owner of the dwelling was not entitled to operate a boarding house therein though she might rent rooms to persons whose stay is expected to be of long duration. We also said that the implied restriction on the use of a dwelling permitted broader uses than one confining the use to residential pur-‘ poses. And in our opinion in that case we referred to a Texas case in which there was a restriction requiring “that the property be used for residence purposes only and that no apartment house, or other business enterprise be conducted or erected thereon.” (Italics mine). Thus in that instance an apartment house was specifically classified as a business enterprise. The property in the Schwarzschild case was located in the city of Richmond, and we properly gave much weight to the opinion of the Law and Equity Court of that city in affirming his decision. I think the case of Deitrick v. Leadbetter, 175 Va. 170, 8 S. E. (2d) 276, 127 A. L. R. 849, must be held controlling of the one now before, us if previous court interpretations are to govern our construction of the language of the covenants. There the applicable restriction was: “that said land shall not be used except for residential purposes,” “or in any manner that will create a nuisance.” The owner was enjoined by the Circuit *87Court of the City of Richmond from operating her home as a “tourist home”. The building consisted of only four bedrooms, together with a dining room and kitchen, in which she, her husband and child lived. In affirming the decision of the trial judge, Mr. Chief Justice Holt said:
“These homes cost around eight or ten thousand dollars each, and, in a general way, belong to a common class. It was the purpose of the land company to have this remain an attractive residential section. These plaintiffs are naturally interested in their own community, particularly in the block in which they live and immediately in lots adjoining their own homes as well as in the business done there. * * *
“This tourist business, as here conducted, is not a nuisance. Its patrons are a ‘very high type people. We have had lawyers, doctors, preachers, missionaries, and we have had a judge from New York.’ But if it is a business, then this lot is not being used for ‘residential purposes’ only. That it is a business can not be seriously questioned. * * * .” (175 Va. 170, 174. Italics mine).
Thus our last two decisions have held that operating either a tourist home or a boarding house is carrying on a business in violation of the residential and dwelling restrictions there involved.
The pertinent restriction now before us is this: “The use of the land sold shall be restricted to residential purposes.” The majority opinion has held, in effect, that this is not violated by the construction of an apartment house thereon by the owner of the lot. The right to construct the apartment house carries with it, as a necessary incident, the right to operate it as a business enterprise. As I have pointed out, I think the management and operation of an apartment house, even one containing four apartments, is a much more extensive business and a more objectionable one to the owners of nearby private residences than operating a tourist home in a six room house, as in the Leadbetter Case, or a boarding house, as in the Schwarzschild Case. It is clearly in violation of the above quoted restriction. The six appellees who bought the lots affected by the apartment *88house so thought and went to the expense of instituting this suit to protect the quiet enjoyment of their properties. I would give to the decision of the trial court the weight to which I think it is entitled and leave out of consideration the opinions of judges of courts of other states. Since it is supported by the language contained in the restrictions and there is no evidence that this interpretation would be in any way unreasonable or inequitable, it should be sustained by us. Stated concisely, my view is that the particular problem presented to us in this case is of a type and character which may be more correctly solved by the application to it of a maximum amount of horse sense and a minimum amount of book learning.
I am authorized to state that Mr. Chief Justice Hudgins and Mr. Justice Gregory concur in this opinion.