(dissenting): The trial court held the restrictive agreement was legal and binding. It should have enforced it by injunction. It is of no avail to plaintiff to relegate her to her remedy at law for breach of contract. This remedy at law is merely fanciful — one in theory — but impossible of any practicable application. This is easily demonstrable by asking the question: “What is the measure of damages which shall be allowed to plaintiff for breach of the contract?” It is apparent that plaintiff does sustain a damage by defendants’ breach of this contract. But how much? How is it to be demonstrated'to a jury in dollars and cents? How is the court to instruct a jury in such a case as to the measure of the plaintiff’s recovery?
Most of our cities were platted in the early history of our state without restrictions of any kind. Like Topsy, they “just grew up;” This condition in recent years has been the source of much regret and disappointment. People have built many fine homes in our cities and have discovered too late that they have no way to protect themselves against the erection of a filling station, garage or store building next door. This situation afforded a fertile field for the “city planners” who recommended the adoption of zoning ordinances. These ordinances “zone” the city so as to set aside certain portions for strictly residential use, apartments or commercial property, as the case may be. While there was strong protest against zoning ordinances in the beginning, the principal objection after they are once adopted is the frequent changes which are permitted therein by the governing bodies of the cities. People object to a change in the zone where they have bought px’operty relying on the use prescribed by the ordinance at the time of purchase.
Titles to real estate must be certain. The right of people to impose the burdens of restrictive covenants on real estate must be recognized and enforced unless such covenants be for some reason illegal. When a person buys a tract of real estate on which restrictive covenants axe imposed he should know that he is bound by such covenants; that they mean just what they say so far as the propex’ty affected thereby is concerned.
Where, in the development of a city, people see fit to enter into a restrictive agreement such as the one in the case at bar, or plat an addition with restrictive covenants in the plat, or convey by deeds containing such restrictions, the courts should enforce such restrictions by injunction unless they be illegal. In the case at bar the *446people who entered into the contract knew when they did so that the making of that contract could not and would not prevent colored people from acquiring all the property around them right up to the boundary of the properties involved in the contract. Nothing these people could, do could prevent that. The fact that colored people were moving in the direction of the property must have been the moving cause of the contract. What these people who entered into the contract had in mind was not to prevent colored people from surrounding them, but to prevent the restricted property from being used or occupied by people of that race. They wanted to restrict their property accordingly. It was their property. They had a right to make the contract. They entered into it understandingly, and now, because a change in conditions has come about which they were powerless to prevent, can it be said that defendants should be relieved from their contract?
I think the trial court was in error in holding that the reduction in value of plaintiff's property by reason of the sale of defendants’ property to Negroes would be “little, if any.” It is true it could not be determined in dollars and cents. The damage is difficult, almost, impossible, of ascertainment, but it is there nevertheless. Defendants’ property, although lying across the street from the remainder of the property involved in the contract, served as a buffer for plaintiff’s property. It kept Negroes just that much farther away from plaintiff’s property. It may well be argued that the contract was of greater advantage to plaintiff than to defendants, but if defendants made an improvident contract that is no reason why they should be relieved from it.
It must be borne in mind that the changes upon which defendants rely for relief from the contract are not such as occurred in the use of the property embraced in the contract. They are changes occurring on property outside the contract over which the parties had no control.
Under the circumstances of-this case, I believe the better rule to follow is that laid down in the case of Ludgate v. Somerville, 121 Ore. 643, 256 Pac. 1043. After pointing out changes which had occurred on properties situated near a ■ highly restricted residential addition, the court said:
“It may be that defendant’s lot is more suitable and valuable for business purposes than for a residence, but, at the time he purchased it, in 1922, he was unquestionably aware of the condition of which he now complains. The *447opinion of defendant and other lot owners in this district that the restriction is no longer beneficial does not deprive the plaintiff of her right to rely thereon. We are not prepared to say, in view of the evidence, that the maintenance of this part of Laurelhurst as a residential district is of no substantial benefit to plaintiff. It is true that it might be more valuable for business purposes, but there are some things in this strenuous age of commercialism that count more than cash. It is her home.” (p. 652.)
See, also, Bohm v. Silberstein, 220 Mich. 278, 189 N. W. 899; Brown v. Huber, 80 Ohio St. 183.
The property owner should be secure in his title. If he has purchased on the faith of a valid restriction which furnished the prime inducement causing him to make his investment, he should be protected in the enjoyment of the restriction. Examiners of titles should be able to advise prospective purchasers not only that the title is subject to the restrictions appearing in the conveyances, but should also be able to advise that the covenants are to be interpreted in strict accordance with the meaning and intent of the language used.
In the development of the modem city restrictive covenants are becoming a matter of great moment. Their enforcement becomes important to progressive town building. Courts should not hesitate to extend the strong arm of equity to safeguard and enforce valid covenants where the parties entitled to the benefit thereof have not waived them or permitted their breach under such circumstances as to create an estoppel.
The judgment of the trial court should be reversed and directions given to allow the injunction sought by plaintiff.