John W. MURPHEY and Helen G. Murphey, husband and wife, and Catalina Foothills Estates, a corporation, Appellants Cross-Appellees,
Cleve GRAY, Appellee Cross-Appellant.
[84 Ariz. 301] Boyle, Bilby, Thompson & Shoenhair and William A. Scanland, Tucson, for appellants.
Conner & Jones, Tucson, for appellee.
This quiet title action was brought by Cleve Gray against the defendants John W. Murphey, Helen G. Murphey, his wife, and the Catalina Foothills Estates, an Arizona corporation, for a decree determining that the defendants had no right or interest in thirteen restrictions limiting the use of the Gray property. The court below declared two of the restrictions void. The Murpheys and the Catalina Foothills Estates have appealed from the judgment declaring the two clauses void, and Gray has cross-appealed questioning the propriety of the court's action in failing to annul the other restrictions.
At the trial it appeared that John W. Murphey and his wife Helen had at some time in the past acquired title, either in themselves or in the name of the Catalina Foothills Estates, a corporation wholly owned by them, to the major portions of sections 16, 17, 20 and 21, Township 13 South, Range 14 East, G. & S. R. B. & M. near the city of Tucson, Arizona. The exact time or times of acquisition were not disclosed, nor was it shown whether title was originally taken in the name of the Murpheys or their corporation. The plaintiff acquired his title as the devisee under the last will and testament of one Louise N. Grace who had purchased the property from the Murpheys and the Catalina Foothills Estates.
On June 14, 1930, the defendant John W. Murphey recorded a plat in the office of the County Recorder of Pima County, Arizona, hereinafter referred to as the Catalina Foothills No. 1. By this plat section 17 was sub-divided into 69 irregularly-shaped parcels. Commencing in 1937 and at various times until August of 1945, Louise N. Grace purchased ten parcels of land in section 16 from the Murpheys and their corporation, so that she ultimately became the owner of approximately 225 acres, all of which was then desert, and which substantially remained so to the time of the trial. This parcel of land lies to the east of Catalina Foothills Estates No. 1, but is not contiguous to it. The land to the east of the Grace property is also owned by the Murpheys and it likewise is desert.
[84 Ariz. 302] The first two parcels purchased by Louise N. Grace in 1937 contained certain restrictions, but in 1939, at the time of the purchase of what is described as the third parcel, a warranty deed was given, signed by defendants Murphey and the Catalina Foothills Estates as grantors. This deed, in addition to conveying title to the third parcel, abrogated the restrictions on the original parcels, and in lieu thereof set up the restrictions which are now the subject matter of this controversy. Similar restrictions were later imposed upon the other parcels subsequently purchased by Louise N. Grace. Sometime between the purchase of the third parcel in 1939 and the start of this lawsuit the defendants, through their corporation Catalina Foothills Estates, caused the land between the Grace property and the Catalina Foothills No. 1 to be platted into the Catalina Foothills Nos. 2 and 3. These plats set up irregularly-shaped parcels of land varying between 1 1/2 and 17 acres; the greater percentage are between 3 1/2 and 7 acres and are similar in size and nature to the Catalina Foothills No. 1. Part of the Catalina Foothills No. 3 extends into section 9, north of section 16, and part of Catalina Foothills No. 2 extends into sections 20 and 21 to the south of sections 16 and 17. The same or similar restrictions that were placed upon the Grace property were placed upon Catalina Foothills Nos. 2 and 3.
The evidence in the trial court was directed almost exclusively to the development of the issue of whether there had been a change in the condition of the lands in this area which would justify the termination of the restrictions. Evidence was introduced which tended to show that the value of the Grace property with the restrictions was $150,000 but that without the restrictions it was reasonably worth $400,000. The trial court adopted the view that 'covenants whether running with the land or not will not be enforced when it would be inequitable to do so' and found that there was a change in the character of the neighborhood which justified a decree voiding the restrictions.
The two clauses declared void by the court below are those numbered 4 and 7 in the deed to Louise N. Grace. Clause 4 essentially provides that not more than one first-class residence shall be built upon each parcel of land except where a parcel is greater than eight acres, and then not more than two first-class residences shall be built. In principle we have approved the restriction of property to a single-family dwelling house or residence.
'It is a well known fact of which this court cannot but take judicial notice, that many families desire to own homes for residence purposes which shall be distinct and separate from residences occupied by other families, and [84 Ariz. 303] that there is a strong and growing tendency everywhere to set aside special districts to be used exclusively for such purposes. * * *' Ainsworth v. Elder, 40 Ariz. 71, 9 P.2d 1007, 1009.
Clause 7 provides for approval by the Murpheys, their architect or agent of plans for new buildings. Equity will enforce the terms of restrictive covenants unless the change in the surrounding area is so fundamental or radical as to defeat or frustrate the original purposes of the restrictions. Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132. The last
stated principle is the rule generally prevalent in this country. See Sorrentino v. Cunningham, 111 Ind.App., 212, 39 N.E.2d 473; Abrams v. Shuger, 336 Mich. 59, 57 N.W.2d 445; Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774; Magnolia Petroleum Co. v. Drauver, 183 Okl. 579, 83 P.2d 840, 119 A.L.R. 1112; Ault v. Shipley, 189 Va. 69, 52 S.E.2d 56; and see the extensive annotations in 4 A.L.R.2d 1111.
The obvious purpose of the restrictions was to establish an area of the highest residential type. The reason for establishing such an area was to benefit the lands retained by the grantors in that they thereby became more valuable as residential sites. sites. Cf. Whitaker v. Holmes, 74 Ariz. 30, 661. There is nothing in the evidence which suggests that the grantors' purpose in establishing an area of the highest residential type is now being frustrated by a fundamental change in character for the only change is from desert to valuable home sites. Cf. Whitaker v. Holmes, 74 Ariz. 30, 243 P.2d 462. Such a similar change occurs in every instance where unimproved property is restricted in its future uses. The benefits to the grantors' land retained still exist now to the same extent as the day the covenants were first written into the deeds. That the plaintiff may be confined to dividing his parcels into areas larger in extent than the defendants' is readily apparent, but this is no reason for removing restrictions for change of conditions when that change must have been contemplated by the covenantor and covenantee at the time the covenants were adopted.
One possible deviation from the general scheme of development which has occurred is a parcel of approximately 80 acres to the north of the Grace property described as Hacienda del Sol which was used by the Murpheys as a girls' school prior to the first purchase by Louise N. Grace. The school was abandoned in 1942 and the property sold in 1944. It is now being used as a guest ranch. This single parcel does not constitute a fundamental or radical departure from the ...