Opinion
03-01-1910
THORBURN et al. v. MORRIS et al.
William H. Osborne, for complainants. Charles H. Ivins, for defendants.
Suit by Alfred M. Thorburn and others against Archie Morris and others. Decree for defendants.
William H. Osborne, for complainants.
Charles H. Ivins, for defendants.
HOWELL, V. C. The complainants' position in this case is without merit, and their bill must be dismissed. It is unnecessary to decide whether the original projectors of Allenhurst devised a plan for the restriction of the use of the tier of lots lying between Main street and the railroad or not, because if any restrictions were ever devised for that tier of lots, and ever put in force, it is very apparent that the whole scheme has been abandoned. I have no doubt that it is competent for parties in interest to abandon the scheme of restrictions as to part of their property, and retain it as to other portions, and such must be the holding here. There has never apparently been any uniformity in the use of lots in the tier referred to. The conveyances contain restrictions of different forms. The buildings from the north end to the south end of the tier are nearly all, and for years have been nearly all, business properties. There has been and is now no uniform line up to which buildings may be erected, nor is there any limit to the variety of businesses which are conducted thereon. Therefore I say that if there ever were restrictions which applied to the lands in question, they have been abandoned, and the lots in question are open to any kind of construction.
I will advise a decree in accordance with these views.