Story Case

Walter Mason developed Beatrice, Montana, as a town site. He flatted one hundred acres into lots, streets, and a park of five acres. This park was shown as existing in the center of the town. James Friez, among many others, bought lots from Mason; some surrounding the park, and others lying at a distance. After one hundred lots had been sold, Mason sold the five acres indicated as a park to the Montana and Western Railroad Company, who preferred to build a depot and shops upon the land. To this Friez and the other property owners objected, saying that a restriction existed upon this five acres for the benefit of the surrounding land. Mason contended that no burden existed upon the five acre trust, since there were no words in the deeds of any of the parties by which he promised to dedicate the land as a park. Friez, with the other owners, brought an action to enjoin the use of the five acres for other than an open park. Will the injunction be granted?

Ruling Court Case. Mcdougall Vs. Schneider, Volume 118, New York Supplement Reports, Page 861

In 1898, Cyrus A. Dunham was the owner of a large tract of land in the burrough of Brooklyn. In July, 1899, he filed a map of the tract with the County Recorder, calling it the "map of Kenwood." The property was shown to be divided into lots, streets, and alleys. He distributed the maps, upon which were the words, "This property when sold is restricted, thus making it a first-class residence locality." He sold the entire tract in separate parcels to various persons. The deeds in each case recited that neither the grantee nor grantor could erect other than detached dwelling houses, and beyond a certain distance from the street line.

Thirty-four houses had been built by individuals when Schneider became the owner of eighty lots, through a contract by which Dunham and his wife agreed to release the eighty lots from the restrictions imposed by the map and deeds. Schneider subsequently agreed to sell the lots to McDougall, but the latter now objects to completing the contract on the ground that the release secured from Dunham and wife was ineffective, since the covenant or promise was for the benefit of all the lots on the map, and a release must be secured from all of them to make such release effective. McDougall, therefore, sues for the return of the earnest money he paid, and for the cost of examining the title.

Justice Burr rendered the decision: "The covenant in question may be enforced by any of the owners of the land shown on the map of Kenwood. It was a restriction operating for the benefit of all of them. There is a mutuality of covenant which binds each of them, and gives to each the same protection." Judgment was given for McDougall.

Ruling Law. Story Case Answer

Restrictions frequently exist upon land, which are in the nature of covenants or promises attached to the land for the benefit of contiguous land. These are covenants or promises running with the land, because no matter who is the owner, he is subject to the promises.

Thus, building restrictions are frequently imposed designating the manner and kind of buildings which can be erected. These restrictions do not usually provide for forfeiture of the land to the original grantor, and are, therefore, not conditions subsequent affecting the title. In other words, the owner has a fee simple, but subject to a promise. This promise is so framed as to give the adjoining owner the power to enforce it by an injunction proceeding.

These restrictions are usually considered as an incumbrance upon the property, although they may be at the same time a benefit, and are always enforcible, if reasonable. They are enforcible if not in restraint of trade, do not tend to create a monopoly, and are generally not contrary to public policy. The dominion which the law gives-every land owner over his land, who owns it in fee, invests him with good right and full power when he conveys it in part to impose such limitations upon its use as will prevent his grantee, and those claiming under him, from making use of the part conveyed in a way that may impair the value of the part retained.

In the Story Case, the land was sold in accordance with the map of the town site. This map became a part of each conveyance, and, therefore, was binding upon the owner of the five acre tract to retain it as a park site. This was in the nature of a covenant or promise running with the five acre tract.