WILLIAM McRAE and LAURA M. McRAE, Husband and Wife, Appellants,
LOIS GRUNOW MEMORIAL CLINICS, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. F. C. Struckmeyer, Mr. Herman Lewkowitz and Mr. George F. MacDonald, for Appellants.
Mr. H. S. McCluskey, Mr. Floyd M. Stahl and Mr. Luther P. Spalding, for Appellee.
[40 Ariz. 497] ROSS, J.
This proceeding was instituted by the McRaes, husband and wife, to enjoin the defendant from violating certain restrictions imposed in a deed under which it obtained title. The court denied the injunction but awarded plaintiffs damages. Plaintiffs have appealed. Both parties are dissatisfied and have assigned errors.
In April, 1914, the owner of the piece of land hereinafter referred to as Hurley Heights Subdivided, an addition to the city of Phoenix, caused the same to be platted into blocks and lots and a map thereof to be filed in the office of the county recorded of Maricopa county. The subdivision is divided into blocks 5 and 6 facing lengthwise on McDowell and Coronado Roads between Seventh and Tenth Streets. There are six 100-foot lots in each block facing McDowell and twelve 50-foot lots in each block facing Coronado, or 36 lots all told.
The plaintiffs are the owners of lot 8 in block 6 facing Coronado, and defendant owns 16, 17 and 18 facing McDowell. Plaintiffs obtained title to their lot in March, 1927, and defendant to its lots on May 28, 1930. The titles of the plaintiffs and defendant and other purchasers of lots in Hurley Heights Subdivided are deraigned from the Phoenix Title & Trust Company acting as trustee for the owner. In the deed from Phoenix Title & Trust Company to its grantee,
through whom the plaintiffs deraign title, were inserted the following conditions and restrictions:
"The grantor grants, sells and conveys said property subject to the following express conditions and [40 Ariz. 498] stipulations, as to the use and enjoyment thereof by grantee, his heirs and assigns: that said property shall be used for dwelling houses, boarding houses, and hotel purposes only; that no buildings other than dwelling houses, boarding houses or hotels, and the barns, garages and other outbuildings incident thereto shall be erected on said property; that the cost of any dwelling house, boarding house or hotel erected on said property shall be not less than $2,500.00; that the lines or walls of any dwelling house, boarding house or hotel, exclusive of porches, built on said property, shall be thirty feet from the front line of said property, and not less than ten feet from any side street line or way of said property; or within three feet from the side line of any inside lot, inclusive of porches; that no fence shall be placed nearer than forty feet from the front line of said property; that the barns, garages, and other outbuildings built upon said property shall not be built within one hundred feet of the front street line of said property nor within twenty feet of any side street or way line of said property; that all dwelling houses, boarding houses or hotels, built on said property shall face either north or south to correspond with the front property line; that said premises and no part thereof shall ever be used for vending, selling or dealing in vinous, malt or spirituous liquors, and no saloon, bar or house of ill-fame shall ever be allowed thereon; that no part of said premises shall ever be conveyed, transferred, let or demised to any person or persons of African, Mexican, Mongolian or Indian descent; that grantor herein shall insert substantially like covenants and conditions in all subsequent transfers of lots in said Hurley Heights Subdivided made by grantor; that should any of the covenants and conditions herein contained be held invalid or void, such invalidity or voidness of such covenant shall in no way affect the validity of the rest of this instrument or any valid covenant or condition herein contained; that all covenants, conditions and stipulations herein contained run with the land, and upon the breach of any one thereof the property shall revert to said grantor, its successors or [40 Ariz. 499] assigns; provided in such event any existing valid mortgage upon said premises shall remain a valid encumbrance thereupon; and provided, further, that the mortgagee or his successors in interest, whether by purchase or otherwise, shall be bound by the covenants, conditions and stipulations herein contained."
In the deeds from the trust company to its grantees, through whom the defendant deraigns title, were inserted conditions and restrictions substantially the same as in plaintiffs' deed.
The defendant's immediate grantors were William C. Grunow and Valborg Grunow, his wife, residents of Cook county, Illinois. They purchased lots 16 and 17 from John L. and Nettie S. Irvin and received a deed therefor dated April 3, 1930, and lot 18 from Avis P. Little and S.D. Little, her husband, and received a deed therefor dated March 27, 1930.
All of the lots on Coronado Road have been sold (two to persons of Mexican descent) and improved for residence purposes. Four lots on McDowell Road are occupied by dwellings, one of which is the original farmhouse, and two of the lots on the corner of McDowell Road and Seventh Street are occupied by commercial houses, such as stores, confectioneries, service stations, etc. Counting these six lots together with three purchased by the defendant, only three lots in Hurley Heights Subdivided are unimproved and these face on McDowell Road.
Upon the filing of plaintiffs' complaint, July 10, 1930, the court issued a citation to defendant, returnable July 17th, to show cause why it should not be restrained from constructing or continuing with the construction of its building. Excavation for the foundation of building was begun about June 30th. No temporary restraining order was granted or issued. The defendant pushed the building to completion in December, 1930, and when the case came on for trial, in January, 1931, the building was occupied and being [40 Ariz. 500] used for the purpose for which it was constructed, to wit, a clinic or laboratory.
It appears from the evidence that William C. Grunow had decided to make Phoenix his winter home. He had become interested in medical charity and in the month of February, 1930, had decided to construct a monumental building in Phoenix, to be called the Lois Grunow Memorial Clinic, so that he would have something to engage his time while wintering in Phoenix. He conferred with W. O. Sweek, a local physician and surgeon to whom he made known his wishes and desires and to whom he entrusted, to a large extent, the carrying out of his wishes. He engaged Fitzhugh & Byron, local architects, to make a sketch showing the type of building proposed. He commissioned John L. Irvin & Company, realtors, to find a location and secure options thereon, with instructions that it should be located near a street-car line and one of the city hospitals and in a community or locality where the people would not object to such an institution, stating that he would not build in any locality "if anyone objected."
"He said he wanted everyone in the district to be thoroughly
satisfied with the institution. He wanted no opposition from any source, and if there were any restrictions on any property, that he would require those restrictions to be removed; and whether the restrictions were valid or not, he would not want any opposition from anybody in the neighborhood, because he wanted everybody ...