No. 747.

82 S.E.2d 388 (1954)

240 N.C. 382


Supreme Court of North Carolina.

June 4, 1954.

Attorney(s) appearing for the Case

W. R. Dalton, Jr., Burlington, for plaintiffs.

Thos. C. Carter, Burlington, Clarence Ross, Graham, for defendant.

WINBORNE, Justice.

Defendant's Appeal.

The sole question presented by the appeal of defendant, as stated in brief of attorneys filed in this Court for him, is whether or not the construction of the residence building on the lot in question nearer than fifty feet to Bueno Street or Wildwood Lane,—a fact agreed,—is in violation of the restrictive covenants here involved. The trial court ruled that it was violation of paragraph four. And this Court now approves.

The subject of restrictive covenants has been recently considered and treated by this Court in opinion by Johnson, J., in the case of Callahan v. Arenson, 239 N.C. 619, 620, 80 S.E.2d 619, 623. There the restrictive covenants are almost parallel in purpose and phraseology to those in the instant case. And they were considered in respect to a proposed plan for partial resubdividing of four lots into smaller units.

It is there said (omitting citations), that "The applicable rules of interpretation require that the meaning of the contract be gathered from a study and a consideration of all the covenants contained in the instrument and not from detached portions. * * * It is necessary that every essential part of the contract be considered—each in its proper relation to the others—in order to determine the meaning of each part as well as of the whole, and each part must be given effect according to the natural meaning of the words used. * * * Another fundamental rule of construction applicable here requires that each part of the contract must be given effect, if that can be done by fair and reasonable intendment, before one clause may be construed as repugnant to or irreconcilable with another clause. * * * Further, it is to be noted that we adhere to the rule that since these restrictive servitudes are in derogation of the free and unfettered use of land, covenants and agreements imposing them are to be strictly construed against limitations on use. * * * Therefore, restrictive covenants clearly expressed may not be enlarged by implication or extended by construction. They must be given effect and enforced as written. * * * Moreover, the rule is that the mere sale of lots by reference to a recorded map raises no implied covenant as to size or against further subdivision. * * *" For rule as to interpretation, see also Stephens v. Lisk, N.C., 82 S.E.2d 99.

In the light of these rules of interpretation, we turn to the covenants now in hand, and parallel the reasoning and decision reached in the Callahan case.

The covenants that control decision here are contained in paragraphs 2, 4, 5 and 8 of the restrictive covenants.

Paragraph 2 designates the lots as residential lots, and restricts the use of the property to residential purposes, and provides that not more than one detached single family dwelling shall be placed on any residential building plot.

Paragraph 4 establishes the minimum building set back lines, both front and side. And this means the front and side as each existed at the time the covenant was made. See Rhinehart v. Leitch, 107 Conn. 400, 140 A. 763; Tear v. Mosconi, 239 Mich. 242, 214 N.W. 123, 124.

Paragraph 5 fixes the minimum size of the building plot. The minimum requirements as to size are governed by two prescribed standards, one as to width, the other as to total area. The minimum width is 60 feet at the front building set back line. And the minimum area is 10,000 square feet. Therefore a lot 90 feet wide and 170 feet deep, the dimensions of the westerly lot of the re-subdivision of lots 10 and 11, exceeds the minimum standard so fixed as to width and size. But the area of the parts of said westerly lot within the lines of lots 10 and 11 respectively fail to meet the minimum standard of 10,000 feet so fixed. Hence, while the area of the westerly lot is adequate for a single family dwelling unit, it is not sufficient for two, and the erection of two-family dwelling units thereon would be and is in violation of the restrictive covenant in this respect.

Moreover, it is noted that the three lots into which lots 10 and 11, as shown on the original map, were subdivided each contains areas largely in excess of 10,000 square feet, and none of them is less than the minimum width. Therefore, as held in the Callahan v. Arenson case, the covenant fixing minimum standards as to width and area authorizes re-subdivision of the original lots 10 and 11 as made by the Newlands.

Nevertheless there is nothing in the covenants that authorizes the change of original front line in respect to requirements as to building set back distances. Indeed, in Tear v. Mosconi, supra, the Supreme Court of Michigan, in opinion by Clark, J., said: "A builder may not treat the side line of the lot as a front line, and by so doing avoid the restrictions". Hence in case in hand, any building erected on the westerly lot of the re-subdivision is required to be located not nearer than 50 feet to such original front line, that is the east line of Bueno Street or Wildwood Lane, or not nearer than 10 feet to the side street line—Plaid Street. And it being admitted that the building proposed to be erected, and erected pending this action, is located 30.5 feet from Bueno Street or Wildwood Lane, such location of the building is in violation of the covenant fixing the set back building line. Therefore, the ruling of the trial court so holding is correct, and is hereby affirmed.

Plaintiffs' Appeal.

This appeal of plaintiffs challenges the correctness of the ruling of the trial court in denying to them relief by mandatory injunction. The court having found that defendant has violated the restrictive covenant as to building set back line in the construction of a dwelling house within fifty feet of Bueno Street or Wildwood Lane, as appears on defendant's appeal, this Court, after considering the equities involved in the light of statement of agreed facts, is constrained to hold that the denial of relief by mandatory injunction is error.

"A mandatory injunction requires the party enjoined to do a positive act, and since this may require him to destroy or to remove certain property, which upon a final hearing he may be found to have the right to retain, it is not so frequently used as a temporary or preliminary order. As a rule such an order will not be made as a preliminary injunction, except where the injury is immediate, pressing, irreparable and clearly established, or the party has done a particular act in order to evade an injunction which he knew has been or would be issued. As a final decree in the case it would be issued as a writ to compel compliance in the nature of an execution. The mandatory injunction is distinguished from a mandamus, in that the former is an equitable remedy operating upon a private person, while the latter is a legal writ to compel the performance of an official duty." McIntosh's N. C. P. & P. in Civil Cases, Sec. 851, p. 972; also Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452; see also Seaboard Air Line R. Co. v. Atlantic Coast Line R. Co., 237 N.C. 88, 74 S.E.2d 430.

In 14 American Jurisprudence 672, we find this comprehensive statement of pertinent case law: "Mandatory injunction has been frequently granted to compel the removal of a building or a part thereof which has been erected in violation of some restrictive covenant as to the use of land. The issuance of a mandatory injunction to compel the removal of a building erected in violation of a restrictive covenant depends upon the equities between the parties. The most frequent use of mandatory injunction as a remedy for the violation of real property restrictions has been to effect the removal of some erection which encroaches over a building line. Unless the injury is so slight as to be within the maxim `de minimis', mandatory injunction will issue to compel removal of encroachments. In the case of one who deliberately violates a building restriction, a mandatory injunction to compel the modification of his building so as to comply with the restrictions cannot be avoided on the theory that the loss caused by it will be disproportionate to the good accomplished." See Annotations, 57 A.L.R. 336; 23 A.L.R.2d 527.

Applying these principles to facts of case in hand, the defendant acquired the property with notice of the restrictions imposed upon lots 10 and 11 as originally platted. His attention was directed to these restrictions when he applied to the city for a building permit, and such permit was granted subject to the restrictive covenants. When he began the erection of building, plaintiffs sought in this action to enjoin him from proceeding. The court granted a temporary injunction which he obeyed. But when the plaintiffs could not furnish the bond required as condition for continuance of the injunction, defendant proceeded to take his chances as to the effect of his conduct upon plaintiffs' rights. Speaking to a like factual situation the Massachusetts Supreme Judicial Court in Sterling Realty Co. v. Tredennick, 319 Mass. 153, 64 N.E.2d 921, 923, 162 A.L.R. 1095, declared: "Upon similar facts it has been the practice of the courts to grant a mandatory injunction." While this statement of the principle is not binding on this Court, it is here appropriate, and is most persuasive. Hence, this Court holds that plaintiffs are entitled to mandatory injunction to require defendant to remove the building so that it shall not be nearer than fifty feet to Bueno Street or Wildwood Lane. Moreover, mandatory injunction is appropriate to prevent further construction of the building, foundation for which it appears has been laid by defendant.

Therefore, on plaintiffs' appeal the case will be remanded for further proceedings in accordance with this opinion, and as to justice appertains and the law directs.

On Defendant's Appeal—Affirmed.

On Plaintiffs' Appeal—Error and Remanded.


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