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Ainsworth v. Elder

Supreme Court of Arizona

April 9, 1932

MRS. S. AINSWORTH, Appellant,
v.
MRS. MARTHA M. ELDER, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Miss. S. V. Ross, for Appellant.

Messrs. Cunningham, Carson & Gibbons, for Appellee.

OPINION

[40 Ariz. 72] LOCKWOOD, J.

Mrs. Martha M. Elder, hereinafter called plaintiff, brought suit against Mrs. S. Ainsworth, hereinafter called defendant, seeking to enjoin defendant against constructing or maintaining a certain so-called "duplex" building, designed for and suitable for use as a residence for two families, on lot 3 of block 16, plat B, F.Q. Story addition to the city of Phoenix. A permanent injunction was issued, which reads as follows:

"It is ordered, adjudged and decreed that the defendant, her agents, servants, employees, grantees, and assigns be forever enjoined from constructing that certain 'duplex' on Lot 3, Block 16, F.Q. Story Addition, Plat B, to the City of Phoenix; that they be [40 Ariz. 73] enjoined from maintaining or continuing the maintenance of said duplex; that defendant remove the duplex or change its construction to make it a one family residence within a reasonable time; that the defendant, her assigns, lessees, or grantees be permanently enjoined from ever designing or using said building after its alteration as a residence for more than one family living separate and apart and that the defendant pay plaintiff her costs herein expended. This injunction, though permanent so long as the character of the above named plat remains unchanged, may be modified on sufficient showing that the character of the plat has changed so as to make it inequitable to further observe and uphold the building restrictions therein."

From such judgment this appeal is taken.

The facts in the case are not questioned, and may be stated as follows: Plaintiff herein is the owner of lot 4 in block 16, plat B of the F.Q. Story addition to the city of Phoenix, while defendant is the owner of lot 3, in block 16, of the same tract. After April, 1920, when the addition was laid out and subdivided, the then owners placed in all deeds issued to purchasers of the lots the following covenants:

"It is expressly understood and agreed by and between the Grantor and Grantee herein, and this deed is given and is accepted upon the express condition that the said land herein described is conveyed and is accepted subject to the following covenants and restrictions, and that such covenants and restrictions are made for the benefit of the lands herein described and shall inure to the benefit of and be binding upon the owners of all other lands and lots in said F.Q. Story Addition, Plat B, to the City of Phoenix.

"4. No building except residences, garages, barns and necessary outbuildings shall ever be erected, placed or permitted thereon."

"3. No residence costing less than Five Thousand dollars shall ever be erected, placed or permitted on any of said lots."

[40 Ariz. 74] "6. Only one residence shall be erected on any one of said lots."

"It being expressly agreed and understood that the said F.Q. Story Addition, Plat B, has been platted and laid out as a choice and attractive residence district, and the foregoing covenants and restrictions run ...


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