McNeil v. Gary

Mr. Justice VAN Orsdel

dissenting:

I am unable to concur in the opinion and judgment of the court. Restrictions of this nature placed upon the use of real estate are to be strictly construed against the grantor, and liberally in favor of the grantee. Granting to defendant the strict *403construction of the covenant in the deed wbicb the law accords to him, it amounts to nothing more than that he may only erect one dwelling house, of value not less than $3,500, and he may not use the house for anything but dwelling purposes. With this, and the further limitation as to apartment houses and flats, the restriction is complete.

It is averred in the bill that all purchasers of lots in said addition from the original owners thereof signed an agreement containing the following provision: “The purchaser in accepting and signing this paper agrees that not more than one dwelling house shall be erected on said lot, that no apartment house nor flats of any description shall be erected on same, that such dwelling shall cost not less than $3,500 to build, and it shall not be used for manufacturing, mechanical, or business purposes of any kind, that it shall not be rented, leased, sold, transferred, or conveyed unto or in trust for any negro or colored person, that these covenants shall be effective and remain in force for the term of twenty (20) years from January 1, 1906, and no longer.”

Reading the agreement in connection with the covenant in the deed, no other reasonable conclusion can be reached than that it was intended to make this addition a community of detached houses, not constructed in rows or solid blocks, as is too common in this city. The restriction cannot be extended to other buildings, without reading into it something manifestly not intended by the parties, and adopting a rule of construction the converse of that to which defendant is entitled. It will not do to hold that only the dwelling house described in the restriction may be erected on the lot, to the exclusion of all other buildings essential to the profitable and convenient use of the lot. It must be interpreted as excluding only other dwellings, flats, or apartments. In other words, the owner of a lot in this addition can erect any building on his lot consistent with the building regulations of the District, except flats, apartments, and more than one dwelling house. He is not limited in the use of his lot, as held by the court, merely to a dwelling house of the prescribed value, to the exclusion of any other buildings whatso*404ever. It has been held in Riverbank Improv. Co. v. Bancroft, 209 Mass. 217, 34 L.R.A.(N.S.) 730, 95 N. E. 216, Ann. Gas. 1912B, 450, that a covenant in a deed providing that “no stable of any kind, private or otherwise, shall be erected or maintained on any portions of said land,” will not prevent the erection of a garage. While the garage was prohibited upon another ground, on this point the court said: “Accordingly it must be held that the building is not a stable within the meaning of the restriction. And this is so even if, as argued by the plaintiffs, a garage is as objectionable as a stable.” It has also been held that a covenant that not more than one house shall be erected on a lot did not prevent the erection of a stable on the rear of the lot. Hime v. Lovegrove, 11 Ont. L. Rep. 252.

The cases cited and proper construction to covenants of this sort, read nothing into the restrictions not clearly expressed therein, and might well be cited as authority in support of my contention in this case. Likewise, all averments in the bill, relative to the general scheme in mind when the addition was laid out and the restriction made, are of no importance, since the covenant, being clear and unambiguous, must stand or fall upon its face.

The decree for these reasons be affirmed.