Opinion
Rehearing Granted Dec. 13, 1927.
Appeal from Superior Court, Los Angeles County; Paul Burks, Judge.
Action by Pauline Ruprecht and others against S. L. Nicholson. Judgment for plaintiffs, and defendant appeals. Affirmed.
COUNSEL
T. C. Gould, of Los Angeles, for appellant.
Mitchell, Silberberg & Davis, of Los Angeles, for respondents.
OPINION
NOURSE, J.
Plaintiff sued to restrain defendant from erecting or maintaining upon defendant’s premises buildings other than residences and outhouses permitted by the deeds of conveyance under which both parties held. Plaintiff had judgment as prayed, and defendant has appealed upon a bill of exceptions.
The covenant under which plaintiff sued was included in all the deeds of conveyance to all the lots of a large tract of land owned and subdivided by the common grantor. The provision which plaintiff claimed was breached reads:
"Buildings restricted to dwelling houses and the buyer shall not construct any dwelling house upon said tracts to cost less than $3,000, *** provided that the buyer may erect a garage or other outbuildings, the same to be built and located at the proper point on said tract for such buildings."
The complaint alleged that the defendant, disregarding this restriction, had erected on one of the lots purchased by him "unsightly chicken houses and barns for use in conducting a chicken ranch and ever since has maintained and operated said chicken houses and barns on said property in conducting a chicken ranch." The trial court found that this allegation was true, that the buildings were used only in the business of raising chickens for commercial purposes, that they were not appurtenant or subservient to a dwelling-house, and that they were not "outbuildings" within the meaning of the term as used in the deed.
On this appeal the appellant urges that the trial court misinterpreted the language of the deed and that respondents were estopped from complaining because they permitted appellant to construct the buildings at a large outlay of expense without protest.
The clear purpose of the limitations in the deeds was to restrict the use of the lots in the tract to residential purposes and to prevent the erection of buildings for commercial purposes. In permitting the erection of "a garage or other outbuildings," the grantor used the term as applying to other buildings, like a garage, appurtenant and subservient to the dwelling house and to be used in connection with the use of the dwelling. This is the common use of the term. 20 A. L. R. note, page 234; 3 Bouv. Law Dict. p. 2433; Firth v. Marovich, 160 Cal. 257, 262, 116 P. 729, Ann. Cas. 1912D, 1190. The finding of the trial court that the buildings complained of were not appurtenant or subservient to the dwelling house and were not to be used in connection with the dwelling is supported by the evidence and not attacked on this appeal. Under the authorities above noted the buildings could not, therefore, be classed as "outbuildings" within the meaning of the restriction.
Respondents testified that they had been infrequent visitors to the tract during the time appellant was constructing the chicken houses on his lot, had seen one of them completed, and had seen other chicken houses on other lots all of which they were led to believe were either to be removed or to be used for housing a small number of chickens for the use of the owner only. It was shown that appellant erected the chicken houses on his lot before he built his dwelling house and that the chicken houses occupied about three-fourths of the area of his lot, with space sufficient to house 1,500 chickens. When respondents learned the extent of the appellant’s plans they entered their protests and testified that they had not protested sooner because they thought appellant was merely erecting a chicken house for home use. The trial court found that respondents made their protest with reasonable diligence and within a reasonable time after they had noticed that he was erecting buildings which violated the restrictions. This finding is supported by some evidence, and it disposes of the defense of estoppel and waiver.
Appellant directs our attention to the inequity of the judgment, pointing out that before he purchased his lots he was assured by the agent of the owners that the premises could be used for the raising of chickens commercially, that three other lot owners were conducting such businesses in the tract at the time, and that he incurred a large expense in good faith, relying upon these facts. The agent of the owners took the stand as a witness and admitted that he had assured appellant that the premises could be used for a chicken ranch; other lot owners testified that they had purchased lots on the same assurances and had erected chicken houses on them; the protests against the maintenance of the houses by appellant were originated by a lot owner who was engaged in the same business. On the record presented here the equities appear to be wholly with the appellant; but an application for injunctive relief rests primarily in the discretion of the chancellor, and an appellate court may not exercise its discretion upon the equities alone unless it is evident that there has been a clear abuse of discretion. Appellant does not contend that such is the case here, but merely argues the equities as though we were hearing the cause in the first instance.
Upon the grounds urged, the judgment must be affirmed.
We concur: KOFORD, P. J.; STURTEVANT, J.