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Continental Oil Co. v. Fennemore

Supreme Court of Arizona

May 27, 1931

CONTINENTAL OIL COMPANY, a Corporation, Appellant,
v.
H. M. FENNEMORE, AUDRY WERTZ MITCHELL, H. S. PRINCE, JOHN A. JOHNSON, H. H. HOTCHKISS, H. H. BRAXTON and W. J. BURNS, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.

Messrs. Cunningham, Carson & Gibbons, for Appellant.

Mr. J. Early Craig, Mr. H. W. Allen, Mr. V. T. Bledsoe, Mr. Richard Fennemore and Mr. H. M. Fennemore, in pro. per., for Appellees.

OPINION

[38 Ariz. 278] FICKETT, Superior Judge.

 Appellees, who own their homes in East Evergreen addition, in the city of Phoenix, a restricted subdivision, brought suit against appellant to enjoin the construction of a gasoline service station, which appellant had started to erect on its lot in the addition. After trial, the court issued its injunction, perpetually enjoining and restraining the construction of the proposed service station. From this decree appellant has appealed.

East Evergreen addition is approximately one-half mile in length by one-quarter mile in width, containing 152 lots, bounded on the north by McDowell Road, on the south by East Roosevelt Street, on the east by Seventh Street, and on the west by Third Street. This tract was subdivided in 1909 by Lloyd B. Christy and wife, who were then the owners thereof, and all of the lots in said addition were conveyed by the said Christy and wife by deeds which contained the following restrictions and covenants:

"It is hereby mutually covenanted and understood between the parties hereto that East Evergreen, within which the above described premises are situated and of which they constitute a part, has been [38 Ariz. 279] platted and laid out as a choice and attractive residence addition to the City of Phoenix; and to protect all lot owners in the enjoyment of their respective lots therein, it is hereby covenanted on the part of the parties of the second part, their heirs, executors, administrators and assigns, that neither they nor any of them will erect or maintain, or suffer or permit to be erected or maintained on the above described premises, any building or structure other than a dwelling house, hotel, lodging house or boarding house, with the necessary and usual outbuildings, and that no saloon or place for the sale of intoxicating liquors and no hospital,

Page 133

sanitarium, hotel, boarding or lodging house used or occupied as such for the care, lodging and entertainment of persons suffering from disease, and no building used or occupied for any purpose that shall depreciate the value of the neighborhooding property for dwelling house purposes shall ever be maintained, kept or permitted upon said premises or any part thereof.

"Said second parties for themselves, their heirs, executors, administrators and assigns, further covenant and agree that neither they nor any of them shall or will construct, build or maintain on said premises any dwelling house, hotel, boarding or lodging house which shall cost to construct less than Two Thousand ($2000) dollars, and that the front line of such building shall not be erected nearer than thirty-five (35) feet to the front boundary line of said premises, and only one house shall be built on one lot, except that on the corners of Fifth and Seventh Streets where additional buildings may be constructed on rear of lot not nearer than one hundred twenty-five (125) feet from the front line of said premises; that on lots fronting on Third Street, buildings must not be nearer than thirty-five (35) feet to the front or side lines of streets and no stable or outhouse nearer than one hundred (100) feet from front or seventy (70) feet from side lines of street. On all other lots, stables and out-buildings must not be constructed nearer than one hundred and twenty-five (125) feet from the front line and on 5th and 7th Streets corner lots thirty-five (35) feet from the side line of said premises.

[38 Ariz. 280] "These covenants are understood and agreed to be and shall be taken and held to be for the benefit of all lot owners, be they such now or become such hereafter."

On or about the third day of August, 1929, appellant purchased for $17,500, from one Cooper, lot 9 in block 4 of said addition, which is located on the northwest corner of the intersection of East Roosevelt and Seventh Streets. At the time of the sale there was a dwelling-house on said property in which Cooper had maintained his family residence during all of the time that he had owned the lot, about a year and a half. Appellant purchased with full knowledge of the restrictions hereinabove set forth. Shortly thereafter it removed the dwelling-house, obtained a permit from the city of Phoenix to erect its service station on said corner lot, and commenced construction thereof.

The undisputed evidence shows that the building restrictions have been well observed throughout the addition, and that it is built up with fine and attractive homes and apartment houses far beyond the requirements of the restriction, making it a fine residential district. There are only about twelve vacant lots remaining in the tract.

One defense, relied upon by the appellant to prevent the enforcement of the restrictions against it, is that the restrictions in the addition have been violated by various and sundry persons, with the knowledge and acquiescence of appellees, who thereby waived their right to enforce them against appellant.

The only evidence in support of this was that in front of the one of the dwelling-houses in the addition, in which appellees were in no way interested, a realtor's sign had been displayed at times. This does not amount in law to a waiver of the restrictions by appellees, and ...


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