McGuire v. Caskey.
Neighboring proprietors of urban lots — Bound not to erect buildings in prescribed distance from street — Either entitled to injunction to enforce observance by other — Relief not denied to one who has erected porch within prescribed distance.
1. Where neighboring proprietors of urban lots are bound by a covenant in a deed, under which both hold, not to erect buildings within a prescribed distance from the street upon which the lots abut, either is entitled to an injunction to enforce observance of the covenant by the other.
2. That relief will not he denied to a plaintiff because he has erected a porch in front of his residence and within the prescribed distance from the street when the purpose of the covenant is to secure and preserve the desirability of the street for private residence, and the porch does not substantially interfere with the easement of neighboring proprietors for light, air and view.
(Decided April 10, 1900.)
*420Error to the Circuit Court of Cuyahoga County.
The defendant in. error, on behalf of himself and numerous others plaintiff, brought suit against the plaintiff in error to enjoin the erection of a building within fifty feet of the east line of Jennings avenue in Cleveland, upon a lot owned by him so that the building should extend to the east line of said avenue. The petition, alleged that the plaintiff and others for whom he sued, as well as the defendant, derived title through and under William H. Averill and others who conveyed to George Worthington, March 18, 1863, the deed of conveyance containing the following covenant running with the land :
“The said George Worthington, for himself, his heirs and assigns hereby covenanting and agreeing with the said grantors and their assigns, as well for the use and benefit of any and every other person who shall or may become the owner of or have any title derived immediately or remotely from, through or under Martin Kellogg or said grantors in this deed to any lot of land or any part thereof fronting on said Jennings avenue or lying wholly or in part within fifty feet of said avenue on either side thereof for the use and benefit of said grantors, or their heirs and assigns, and with a view of increasing the beauty of said avenue and enhancing the value of the lots along the same for the purpose of private residence, not to erect or place, or cause, permit or suffer to be erected or placed at any time, or for any purpose on the above granted or bargained premises, any building of any name or description whatsoever so that any part of the building shall be within fifty feet of the east line of Jennings avenue.”
That the titles of the plaintiff and defendant were alike subject to the restriction of said covenent and that the defendant was proceeding in violation thereof to erect a building upon his lot flush with the line of the avenue which it was alleged would oper*421ate to the irreparable injury of the property of the plaintiff and others which were used chiefly for residence purposes by limiting their views in various directions and impair the rental value of the property for residence purposes. McGuire demurred generally to the petition, and his demurrer was overruled. He then filed an answer admitting the ownership of the several parties alleged in the petition and the making of the covenant counted upon in the petition. He however denied that Jennings avenue was a street almost wholly given up to residence purposes, and alleged that there were upon the street fifteen or twenty business places, .eating houses and saloons. He denied that the residences on said street are constructed at a distance of fifty feet back from said street, but to the contrary alleged that a .number of the residences and other buildings were and are within less than fifty feet of the street line. He also alleged that the residence of plaintiff himself, upon his lot abutting upon said street, was within forty-four or forty-five feet of the street line. He further alleged that owing to the changes in the condition of said street and the purposes for which the property is used since the date of said covenant, it is much better fitted for business purposes than for residence.
The plaintiff by reply admitted that after a number of residences had been erected upon the street fifty feet from the street line, but without porches in their front, by common consent he and a number of the others erected porches in front of their residences, and encroaching to the extent of five or six feet upon the fifty feet reserved for purposes of light and air. He alleged, however, that the other buildings in which there were substantial encroachments upon the fifty feet reserved were half a mile, or about half a mile, from his residence, while the property of the defendant immdiately adjoined it and was upon a portion of said street which continued to be used exclusively for residence purposes. He also alleged that as to *422some of the property which had been improved by building now within less than fifty feet of the east line of the avenue, they had been erected the required distance from the street, but that by appropriation proceedings that portion of the street had been widened and thus a new line established nearer to the buildings than that established by the terms of the grant.
The case was tried on appeal in the circuit court where there was a general finding and a judgment in favor of the plaintiff, and McGuire was perpetually enjoined from erecting a house upon the line of the street. The evidence showed that there had been some slight disregard of the limitations defined in the deed as to the erection of buildings, but that most of those which were of a serious nature were quite remote from the residence of the plaintiff and others who were interested with him in the prosecution of the injunction suit. It also showed that some porches erected after the original buildings were constructed, as alleged in the reply, were constructed by the owners of the property.
James M. Jones and Peter F. McGuire, for plaintiff in error.
First. We claim that the court erred in overruling the demurrer of Peter F. McGuire to the petition. The petition was defective in this: That it did not aver performance of the conditions of the covenant in question by the plaintiff or those for whose benefit he prosecuted the action. 4 Eng. and Am. Ency., 539; 24 Wendell, 153.
Second. We claim that no equitable relief can be granted by a court of equity or a court of law to the plaintiff below on the facts admitted by the plaintiff in his reply, which are, that he and all the rest of the people in the street by common consent have violated the covenants of said deed by building their *423porches inside of the lifty-foot limit. The restriction and covenants was against placing any part of a building within fifty feet of the street. Any substantial violation of a covenant is as much an actual violation of it as if it was wholly disregarded, and a building placed right up to the street. And we think a court of equity would enjoin against a small violation of the covenant as quick as it would a large one. Pomeroy’s Equity J., Sec. 1342.
Can it be for a moment supposed that under such a covenant one could build his porch six or eight feet inside of the line and then go into a court of equity and get a restraining order to prohibit his neighbor who wanted to build his twenty feet inside the line. The authorities are clearly against this. C. E. Green, 206; High on Injunction, Sec. 58; L. R. 3 Equity, 515.
Third. If the petition is to be held by the court to contain a substantial covenant that the plaintiff and those other persons for whom he brought his suit had themselves kept and fulfilled the covenants of the said Worthington deed, then the reply is a clear departure from the allegations of the petition and nullifies the allegations of the petition in that respect.
Fourth. On the facts in the case which are either ' clearly proved, admitted, or not at all controverted, the plaintiff below was not entitled to a restraining order or any other relief, from a court of equity. This testimony shows an habitual violation of the covenants of the deed and an acquiescence in such violation by all the people on the street, including the plaintiff himself. When Mr. McGuire, the plaintiff in error, bought his property, with the building on it, this state of things had long continued.
The cardinal principle governing all actions in a court of equity are:
1st. That equality is equity.
2nd. That equity follows the law.
3rd. That he who seeks equity must do equity.
*4244th. That the plaintiff must always come into court with clean hands in regard to the very transaction on which his suit is based. Beech’s Equity, Secs. 9 to 16; High on Injunctions, Sec. 119; L. Rep. 8 Ch. App., 658; 101 Alabama, 344; 64 Conn., 136; 50 Ill. App., 310.
We are willing to concede that the covenant in the original deed is a covenant running with the land and that it is precisely the same in its legal effect on the parties to this suit as if it had been a contract directly between them. All covenants running with the land may be enforced in an action of covenants, and by each successive assignee. 66 Ill., 393.
In all cases of dependant or concurrent covenant performance on the part of the plaintiff must be pleaded and proved. 4 Am. Eng. Ency, 339; 24 Wendell, 153; 6 B. Monroe, 612; 13 W. Ya., 707.
For it is one of the settled principles of a court of equity that he who seeks equity, or seeks for the aid of a court of equity to enjoin the violation of an agreement for the protection of his contraction rights, must himself come into court with clean hands, and to entitle himself to relief he must have carried out as far as possible his own part of the contract. 2 High on Injunction, Sec. 1119; 2 Jur. N. S., 348; 33 Bevan, 22.
He cannot come into court with “clean hands” if he is violating or has violated the very contract that he is asking a court of equity to enforce. This is most distinctly held in numerous cases. The Ohio authorities and the practice of all the courts is clear and uniform on this question. It is unnecessary to quote any case except the 32 Ohio St., 184; in 10 Ohio St., 508, the same doctrine is laid down..
We claim that no case can be found that warrants the idea that a persistent violator of the covenant in any material matter can enforce that covenant against others violating or proposing to violate it. *425Can it be claimed for a moment that building clear across a 40-foot lot from 6 to 10 or 12 feet inside of a prohibited 50-foot line is not a plain violation of the express terms of the covenant? I Pom. Eq. Jur., Sec. 385; 8 Oh. L. R, 658; 2 High on Injunction, 1119; 1 Turner & Russel, 17; 3 Eq. L. J., 515; 9 C. E. Green, 206.
In this case the court granted an injunction against the construction of a bay window only four feet nearer the line fixed in the covenant, and only one story high.
Long acquiescence in a violated covenant will prevent relief. 2 High on Injunction, 1159; 3 Eq. L. R., 515; L. R. 8 Ch., 658; 1 Turner & Russell; Ch. R., 22.
Gaskey & Galhown, for defendant in error.
Counsel for plaintiff in eror concedes that our action is Avell brought, that our covenant is a lawful one, that it runs with the land and that his client is bound by it, unless he can be relieved from the obligations thereof by reason of the conduct and acts of the plaintiff below or the other property owners on the street. So that it seems hardly necessary for us to spend any time arguing along those lines and we will not take the time of this court to do so beyond submitting to your honors the authorities cited below which have a bearing upon the case in hand. Hickey v. Railway Co., 51 Ohio St., 40; Shields v. Titus, 46 Ohio St., 528; Bank v. Cunningham, 46 Ohio St., 575; Peck v. Conway, 119 Mass., 546; Tobey v. Moore, 130 Mass., 448; Western v. Macdermott, 2 Ch. App., 72.
But the fact that the owners of other lots who acquired title under a deed containing the same covenant have violated it, is no defense. It does not release defendant from the performance of the covenant in his deed so long as it remains of any value to the *426plaintiff. Lattimer v. Livermore, 72 N. Y., 174; Amer-man v. Dean, 57 N. Y. Superior Ct., 175.