(dissenting).
Believing that the majority have failed to correctly apply well-established legal principles to the undisputed facts of this case, we find ourselves unable to agree with either the disposition of this case by the majority, or the reasoning by which they reach their result.
Courts have generally used one of two theories in refusing to enforce restrictive covenants — either (1) a presumption that the parties intended that the covenant terminate when the purposes for which it was designed could no longer be accomplished; or (2) by applying the balancing-of-interests approach where because of greatly changed conditions, enforcement of the restrictive covenant would not only not benefit those seeking enforcement of the restriction but would also inflict serious hardship on the one seeking to abolish the restriction.
The majority construe our decisions as falling within the latter classification. See Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 744, where we said such restrictive covenants should be extinguished where the changes in the surrounding area are so radical as to frustrate the original purposes and intention of the parties so that they can no longer be carried out. Compare Neff v. Hendricks, 57 N.M. 440, 259 P.2d 1025, where we affirmed the judgment of the lower court enforcing the restrictive covenants applicable to Block 1 in Cloud-croft. See also Mershon v. Neff, 67 N.M. 311, 355 P.2d 128, where the restrictive covenants (except the southeast corner held bound by the restrictions in Neff v. Hendricks, supra,) were removed. It will be noted that in Mershon v. Neff, Compton, then Chief Justice, dissented and Noble, Justice, did not participate.
A leading case almost identical with the facts of the instant case is Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132, where, even though the streets surrounding the restricted residential area had become important traffic arteries, the court was unwilling to find the changes so radical as to frustrate the intention of the parties, or to justify violating the restrictions. It is the general doctrine that one lot cannot be considered separate and apart from its relation to the entire restricted area. Those who have bought lots in reliance on the restrictive covenants are entitled to protection against prohibited invasion regardless of how close business may crowd around them. Swan v. Mitshkun, 207 Mich. 70, 173 N.W. 529, and the fact that adjoining or surrounding property is now used for business does not alter the right of property owners to have it preserved for the purposes for which they must be presumed to have purchased it. See the great weight of authority cited in Continental Oil Co. v. Fennemore, supra. Compare Trustees of Columbia College v. Thacher, 87 N.Y. 311, where the tract in downtown New York was entirely surrounded by business and an elevated railway station was located directly in front, rendering privacy and quiet impossible.
In our view, the great majority of the courts require satisfactory proof that conditions have so changed as to frustrate the intention of the parties in creating the restrictive covenants and proof that the subdivision, by reason thereof, is no longer valuable as a residential tract. See the cases cited in the excellent discussion of the question in Note, 11 N.Y.U.Inter.L.Rev. 87, 94-96. See also Note, 45 Ky.L.J. 292, 297-300, which discusses five factors to consider in determining whether the benefits sought can be substantially secured. See also Restatement of Property § 564, saying that courts will refuse to enforce such restrictive covenants only if conditions have so changed as to make it impossible longer to secure in a substantial degree the benefits intended to be secured by the performance of the covenant.
In our view, the majority have fallen into the same error as did the trial court, in that they find substantial support for the finding of the trial court that enforcing the restrictions against the two lots involved in this action would not benefit the remaining lots. Even if that be true, the rule is that all of the lots must be considered. Continental Oil Co. v. Fennemore, supra. When the correct rule of law is applied, the finding lacks substantial support in the evidence. The changes here are essentially located in the residences in which the people live. The changes in this case are entirely minor in character. It is apparent to us that the intent of those imposing the restrictive covenants was to except from them and to permit, without restriction or violation, those things necessary or convenient to tourists or vacationers. Motels and restaurants would seem to come within the express exception of hotels and boarding houses. Certainly the absence of the fence, .the erection of a school in the area, and the fact that the people now live there the year around instead of only in the summer months, are not such radical changes as to frustrate the intention of the parties.
The effect of the action of the majority today is to open the door to all lots in the blocks fronting on the highway and by association to next extend to the properties in the adjacent blocks so that, in a short period, by extensions alone, the restrictions will be removed from the entire restricted tract. See Note, 11 N.Y.U.Inter.L.Rev. 87. As a matter of fact, in our view the change in location of the highway forms the real basis for the majority opinion.
We are likewise unable to agree with the theory by which the majority, without citation of authority, reject the buffer zone doctrine. In our view, refusing to enforce the restrictions in the block immediately north of the new highway, as was done in Mershon v. Neff, supra, established that as a buffer zone. Removal of the restrictions affecting the block immediately south of the highway will ultimately result in such removal in adjoining blocks to the south.
Believing that such restrictive conditions are imposed as a protection to purchasers of real estate, we believe the great majority of the better reasoned decisions require their enforcement unless conditions have so radically changed that they simply cannot be enforced. For these reasons, we feel that the judgment appealed from should be reversed and, accordingly, dissent from the majority opinion.
COMPTON, J., concurs.