O'MALLEY et al.
CENTRAL METHODIST CHURCH
Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., Henry S. Stevens, and Burr Sutter, all of Phoenix, for appellants.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellee.
J. Smith Gibbons, Superior Judge. Stanford, C. J., and Udall, J., concur.
Note: Justice ARTHUR T. La PRADE having announced his disqualification, the Honorable J. SMITH GIBBONS, Judge of the Superior Court of Apache County, was called to sit in his stead.
J. Smith Gibbons,
[67 Ariz. 247] The plaintiff (appellee), a nonprofit corporation, owned or had options to purchase lots 10, 11, and 60, in Los Olivos Subdivided, an addition to the City of Phoenix, and
announced its intention to erect a church edifice and construction incident thereto to carry out the activities of a modern church. Defendants (appellants), owners of lots in Los Olivos Subdivided and Los Olivos Amended, claim that certain building restrictions imposed upon lots in said subdivisions prohibit the erection of said church. The plaintiff instituted this class action against the above-named defendants, who are being sued individually and as representatives of the owners of all the lots in said subdivision, to have this controversy between it and said lot owners adjudicated and determined under the provisions of the Declaratory Judgment Act.
Since everything depends upon the history of the titles, covenants referred to, and the intent of the parties viewed in the light of surrounding circumstances and conditions, a statement of the salient facts is necessary to a proper understanding of the precise questions involved. L. H. Chalmers and Laura E. Chalmers, his wife, owning approximately five acres, Dwight B. Heard and Maie B. Heard, his wife, owning approximately 10 acres, and A. C. Bartlett and Abby H. Bartlett, his wife, owning the remainder of a 160-acre tract, on December 21, 1906, joined in a plat subdividing the Southeast Quarter of Section 32, Township 2 North, Range 3 East, into lots and blocks of approximately 5 acres or more, under the name of Los Olivos, and filed the same on the 11th day of June, 1907. Thereafter, and before the 30th day of November, 1909, A. C. Bartlett and wife conveyed certain lots in said subdivision as follows: Lot 25 to Samuel H. Hanger, Lot 32 to Ella McElhaney, Lot 29 to H. O. Winslow, Lot 28 to Christina Wurst, and Lot 13 to Louise Wight Path; each of said lots containing approximately 5 acres; the south half of Lot 22 to Amelia Renau, and the South half of Lot 20 to J. T. Whitney; each of said lots containing approximately two and one-half acres. On the 30th day of November, 1909, A. C. Bartlett and wife, Dwight B. Heard and wife, and each of all of the grantees and their spouses of the above listed lots filed in the office of the County Recorder a further plat of the Southeast Quarter of said Section 32, being the same tract of land covered by the earlier [67 Ariz. 248] plat of Los Olivos, and designated the new plat Los Olivos Amended.
In neither of the said plats were restrictions of any kind imposed upon the lots therein contained, nor were there, until after the filing of Los Olivos Amended, restrictions of any kind imposed upon any of the lots in said subdivision by any instrument, except that certain of the conveyances above mentioned contained a personal covenant that the grantee would erect a dwelling house upon the land purchased and that it would be set back a certain distance from the street lines in said tract.
Thereafter, on May 11, 1911, L. H. Chalmers and wife, owners of Lot 9, George E. Lilley and wife, owners of the west half of Lot 24, Charles Riegel and wife, owners of the east half of Lot 24, E. E. Kirtland and wife, owners of Lot 18, and A. C. Bartlett and wife, owners of the remainder of the land involved, filed a further plat of the Southwest Quarter of the Southeast Quarter of said Section 32, being the Southwest Quarter of the tract formerly platted as Los Olivos and Los Olivos Amended, that the name of the subdivision was Los Olivos Subdivided, and no restriction of any kind was imposed upon any of the lots therein contained by said plat. After filing the plat of Los Olivos Subdivided, A. C. Bartlett and wife conveyed certain lots in said subdivision to various purchasers by deeds containing the following restrictions:
"It is mutually covenanted and understood between the parties hereto that Los Olivos Amended, within which the above described premises are situate and of which they constitute a part, has been platted and laid out as a choice and attractive residence subdivision, and to protect all lot owners in the enjoyment of their respective lots therein, it is hereby covenanted on the part of the party of the second part, his heirs, executors, administrators and assigns, that neither they or 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, with the necessary and usual outbuildings, and that no saloon or place for the sale of intoxicating liquors, and no hospital, sanitarium, hotel, lodging or boarding 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 neighboring property for dwelling house purposes shall ever be maintained, kept or permitted upon said premises or any part thereof."
(Also provides for minimum costs of dwellings to be erected within a specified time, and sets forth the distances said buildings are to set back from the street line.)
Said restriction further provides:
"All covenants herein contained attach to the land and run with the title thereto, and for any violation of the covenants of the [67 Ariz. 249] second party herein contained by said second party, his heirs, successors, representatives or assigns, said premises shall become forfeited and revert to the parties of the first part, their heirs and assigns."
The trial court found that the recital contained in deeds to lots in said subdivisions, viz.: "It is mutually covenanted and understood between the parties hereto that * * * has been platted and laid out as a choice and attractive residence subdivision, and to protect all lot owners in the enjoyment of their respective lots therein, it is covenanted by the second parties * * *," was not true for the reason that Ella McElhaney, Bernard Wurst, Amelia Renau, S. M. Hanger, E. O. Path, J. T. Whitney, Dwight B. Heard, H. O. Winslow, and L. H. Chalmers, being the owners of lots in said tract amounting to approximately one-fourth of the entire tract, never had any part in executing said deeds nor agreed to placing any restrictions on the lots owned by them, and subsequently deeded their said lots without restrictions. The heirs of Dwight B. Heard still own Lots 7 and 8 and the daughter of L. H. Chalmers still holds a part of Lot 9 without restrictions. Business buildings of different classes and descriptions have been erected on a number of unrestricted lots, and some lots within the area are still vacant.
Lots 1, 2, 3, 55, and a portion of Lot 4, located only 350 feet from the property of the plaintiff, owned and retained by Bartlett and wife, were never subject to restrictions of any kind, and were recently conveyed by the heirs of A. C. Bartlett, and by Abby H. Bartlett to the City of Phoenix, or the Civic Center Association, to be used as a public library, art center, war memorial, Little Theater building and various other public activities.
After the Plat of Los Olivos Subdivided was filed, Bartlett and wife conveyed various lots therein by deeds containing similar restrictions to the one above set forth as contained in Los Olivos Amended, except that the cost of dwellings was changed from $ 5000 to $ 6500, and the last paragraph of the former restriction relating to forfeiture was changed to read as follows:
"All covenants herein contained attach to the land and run with the title thereto and in the event of any threatened or actual violation of any of the covenants upon the part of the party of the second part herein contained by the said second party, his heirs, successors, representatives or assigns, then said party of the second part for himself, his heirs, personal representatives and assigns, does hereby consent that an injunction may issue without notice and without bond at the suit of the parties of the first ...