CONDOS et ux.
HOME DEVELOPMENT CO., Inc. et al.
[77 Ariz. 131] Robert F. Miller, Scruggs & Rucker, Tucson, for appellants, and Richard N. Roylston, Tucson, associate counsel.
Darrow & D'Antonio, Tucson, for appellees.
PHELPS, Chief Justice.
This is an appeal by defendants Tom Condos and Sophia Condos, his wife, from a judgment of the superior court of Pima County in favor or plaintiff-appellees Home Development Company, a corporation, enjoining defendants from selling intoxicating liquors upon Lot 8, Block 67 of National City subdivision No. 5 to the city of Tucson in violation of a restrictive covenant against the sale of such liquors thereon, and from an order denying defendant's motion for a new trial. The parties will be referred to as the Company and defendants. The action was originally brought by the Company but by permission of court, a number of purchasers of lots in said subdivision were joined as parties plaintiff.
The facts are that as a part of a larger development the Company on January 4, 1945, officially platted National City Subdivision No. 5 as a subdivision to the city of Tucson. This land extended along South Sixth Avenue. On May 25 following, the Company recorded with the county recorder of Pima County the following restrictions which were declared in the instrument to be covenants running with the land constituting equitable servitudes upon the lots lying within said subdivision:
'1. The restrictive covenants of National City No. 5 subdivision of Pima County, Arizona, shall run with the land.
'2. All of said property shall be used for residential purposes only except Blocks 67 and 77, Lot 11 in Block 68, Lot 1 in Block 69, Lot 26 in Block 71, Lot 11 in Block 72, Lot 10 in Block 75 and Lot 1 in Block 76.
'3. No residence shall be constructed in the front half of property that is not of a permanent character.
'4. All adobe and tile buildings must be plastered on the exterior surface.
'5. All frame buildings must be painted.
'6. No residence constructed of scrap metal shall be allowed.
'7. Garages may be built of corrugated iron.
[77 Ariz. 132] '8. No outside toilets will be permitted, except for a period not to exceed 90 days during construction of a permanent house.
'9. All buildings built upon lots used for business purposes must be set back at least ten feet from the property line.
'10. No buildings constructed on the lots to be used for residential purposes shall be built nearer than 25 feet to the front property line, nor nearer than five feet to any side property line, within 50 feet distant from the front property line of said lots, not nearer than five ...