Duncan v. Central Passenger Railway Co.

JUDGE HOLT

delivered the opinion op the court.

Wm. P. Johnston was the owner of twenty acres of land lying between Baxter and Barrett Avenues, in the city of Louisville. In 1870 he made a plat of it, in which it was laid out in lots with a wide avenue running through the middle of it, from Baxter Avenue to Barrett Avenue, known as “Highland Avenue.” The owner believed that the lots would sell best for residences, and the purpose was to confine them to this use. This was the plan. In October, 1873, he sold and conveyed lots Nos. 60, 61 and 62, which lie at the corner of Baxter and Highland Avenues, to one Allman. He had previously declined to sell them to the appellee, The Central Passenger ■ Railway Company. Allman conveyed them to it in December, 1873, for the price at which he had purchased.

The deed from Johnston to Allman contained this restriction: “It is hereby agreed between the first and second parties, that no business, manufacturing or other than dwelling-houses shall be built upon said property, and no alley shall run through said property; and no building of any kind shall be put thereon fronting any other way than on Highland Avenue or the said twenty-four feet alley.”

The deed from Allman to the railroad company, however, embraced no such condition; but the one to him was of record, and the company moreover had actual notice of the restriction in the grant to him. It occu *530 pies no better attitude, therefore, than it would if it had been embraced in its own deed.

Such negative easements or predial servitudes, as they* were called in the Roman law, are valid. They qualify the estate granted. The limitation on the use enters into the consideration for the contract, and should, therefore, by common justice, be unheld, if not unlawful. It is not void as in restraint of trade, because it is not a contract in general restraint of it, but merely prevents the use of a particular piece of property in a certain way. No undue but a limited restriction upon the use merely is imposed. Conditions forbidding alienation to particular persons, or for a limited time, or to particular uses, are not in violation of law. (Staines v. Dorman, 25 Ohio St., 580 ; Trustees v. Lynch, 70 N. Y., 440 ; Cowell v. Springs Co., 100 U. S., 55 ; Tulk v. Moxhay, 11 Beavan, 571.)

The appellee in 1881 began the erection of a brick building upon its lots thus acquired, to be used as a station for its street railway, which extends along Baxter Avenue, and also to shelter its cars, and as a stable for its stock.

The appellant Johnston, relying upon the restriction in the deed' to Allman, enjoined the appellee from building it. There is no question of laches upon his part, ■because he acted in limine as to the work, and enjoined it as soon as it was begun ; but the inquiry is presented whether there has been such a change in the condition of the property, or such conduct upon his part, as prevents him from.asking the aid of a court of equity.

There are, as yet, no buildings upon any of the lots. In fact, “Highland Avenue,” has never been improved, *531 or, in fact, made a street. It must be recollected that the sale to Allman was in October, 1873.

Prior to that time Johnston had sold a lot to one Miller; also one to a man by the name of Mueller, and had mortgaged a portion of the land. He sold a lot to one Bradas in 1874; another to Susan Hepburn in 1876 ; another to one Piggatt in 1880; and in 1881 he sold a large portion of the land to John M. Caperton, and mortgaged all the balance of it which he still owned, and which was not already encumbered by mortgage.

The location and different' sales will be best understood from the following plat:

None of the deeds or mortgages made by the appellant Johnston contained any restriction whatever as to use, save that to Allman.

The Hepburn lot has changed ownership several times since its sale by Johnston, and now belongs to the appellee.

The parties now complaining own no land adjoining the lots of the railroad company, or any upon that side *532 of Highland Avenue. They have no interest in any, save that yet belonging to Johnston, and which is under mortgage. Indeed, he is the only complainant in interest, because the other appellants are his wife and his trustee.

The owners of the lots adjacent to those owned by the company are not complaining, and have the right to erect any thing they please on their lots, short of a nuisance. Indeed, the company has a right to build a stable or any other structure upon the Hepburn lot, as it now belongs to it, and is not subject to any restriction.

It is urged that the conduct of Johnston in thus selling the other lots without any restriction should be held to be an abandonment or waiver of the restriction in the Allman deed; and that by so doing he has produced such a state of circumstances or condition as to the property that no such injury can accrue to him as authorizes its prevention by injunction.

This writ is an extraordinary remedy. Its aid can not be invoked save in a clear case of impending injury. There must be an urgent necessity, and this must be clearly shown. A mere possibility of injury does not authorize it. (Dumesnil v. DuPont, 18 B. M., 804.) The mere fact that there is a contract between parties does not authorize it, because there is a remedy for a breach of it by an action at common law for damages; and if every contract could be enforced in equity, the chancellor would be overburdened. Our Code of Practice authorizes its issual where great or irreparable injury is about to accrue. This, however, is not to be confined to cases of heavy pecuniary loss. If so, the *533 person who has bnt little would often be comparatively remediless.

If the cause of action be continuous, and the nature of the impending damage s'uch as not to be susceptible of proper assessment by a jury, but a matter of conjecture merely, then an injunction will lie. Otherwise, the remedy would often be inadequate; and it is in such cases that equity aids the poverty of the law, and rather regards the right of the party than the amount of damage which may accrue. (Staines v. Dorman, supra.) Cases in support of this rule .might be cited without number. Indeed, there is high authority holding that no damage whatever need be shown; but that the right existing by virtue of the contract may be enforced without regard to the question of resulting damage. (Dickinson v. Canal Co., 15 Beavan, 290; Commonwealth v. Railroad Co., 24 Pa. St., 160; Trustees v. Lynch, 70 N. Y., 440 .)

We need not, however, determine the extent of the rule, because there is another question which is fatal to the appellant’s claim.

It is evident that the restriction in the Allman deed was inserted to enable the appellant Johnston to carry out his plan of selling the property for residences. The then design was to have no buildings erected there save for residential purposes. This was a general plan, and to prevent its symmetry from being marred, the covenant in the Allman deed was inserted. The evidence is conclusive that this plan was abandoned. Johnston subsequently sold the most of the property without any restrictions whatever.

The grantees have the right to erect any character of *534 building, and use it for any purpose, save a nuisance, which the law, and not the conveyances to them, inhibits. They may build stables, tan-yards, soap factories or structures of any other character, save those within the ban of the law.

This is the result of Johnston’s own conduct. He has put it out of his power to carry out his plan or general scheme of using the property for residential purposes only; he can no longer prevent others from destroying the plan; and by his own acts even the appellee has a perfect right to build a car stable upon the Hepburn lot, now owned by it, and which adjoins the lot as to which the restriction was inserted in the Allman deed, years before this action was instituted. It is impossible, therefore, to carry out the theory or general plan which led to the insertion of the restriction named; and Johnston himself has produced this state of case. It is true that no other buildings have yet been erected; but they may be at any time; and a court of equity should not lend its aid to one looking to a certain end, when it may be defeated at any time by reason of the previous conduct of that person. Its action under such circumstances would be futile and barren of results.

It is urged, however, that Johnston had a right to suppose that the other vendees would not erect any objectionable buildings, if the owner of the lot at the entrance to the avenue was restricted from doing so. It, however, appears that the year following the sale to Allman, the appellant sold the lot immediately opposite, and which fronts on both Baxter and Highland Avenues, to Bradas, without any restriction whatever as to *535 its use ; and the conclusion is irresistible that the plan existing in his mind, and which led to the insertion of the restriction now in question in the Allman deed, was abandoned.

The general scheme has by the appellant’s own permission and conduct been so changed, and the condition of the property so altered, that it is liable to be defeated at the pleasure of others, and may, in fact, be regarded as impossible of fulfillment. The original plan, owing to his own action, is no longer practicable. The restriction has been thus rendered inapplicable in its true intent and meaning; as much so as if the plaintiff had himself erected buildings destructive of the object of the covenant; and in such a case a court of equity will not interfere.

In support of these views, we refer to Hilliard on Injunctions, page 711; High on Injunctions, section 1158; Roper v. Williams, 1 T. & R. Eng. Ch’y. Reps., page 18, and Duke of Bedford v. Trustees of British Museum, 2 M. & K., 552.

A contract, the fulfillment of which becomes unreasonable, will .not be enforced at the instance of a party, who by his own conduct has produced such a result. After treating it as void, he can not appeal to a court of equity to treat it otherwise.

We must regard the present state of the property, and viewing it in this light, ought a court of conscience to interfere? The power of Johnston to control the premises is now gone. He has voluntarily let the matter pass out of his hands ; and having done so, it is no longer consonant with the principles of equity to interfere, and he can not, to the prejudice of others, now *536 ask a court of equity to aid Mm-. Great injury would likely result to others, and no correlative benefit to-Mm.

The most of the cases cited by Ms distinguished counsel did not turn upon the question of waiver or abandonment, while some of them are exceptional in fact, but not in law. Indeed, the rule above indicated appears to be admitted, but it is denied that this case falls-within it.

We think otherwise ; and the judgment is affirmed.