Homer Moore, Appellant, v. Florence Stevens, Appellee, 90 Fla. 879

Strum, J. Appellant, Homer Moore, who was defendant below, is the owner of Lot One, of Block Two, of Lingerlong Subdivision, situate in the City of Tampa. Title to said lot is held by appellant subject to the following provisions contained in an antecedent conveyance in his claim of title and by reference made a part of the deed by which appellant acquired title: “As

part consideration for the purchase price of said property said party of the second part hereby covenants and agrees as follows: That this conveyance is made by the parties ol the first part and accepted by the party of the second part under an agreement that the property hereby conveyed is to be used for residence purposes only; that only one residence shall be erected on each lot, and said residence shall face east and shall not cost less than $8000.00 but the owner of said lot may have the necessary servant and out-houses on the rear of said lot; that the building line of said lot shall not be twenty feet or more from the front of said lot; that no liquor or ardent spirits are.to be sold upon said property; that said property shall never be rented, sold or otherwise disposed of to persons of African descent; that no use shall be made of said property or any part thereof that would constitute a nuisance or injure the value of any neighboring lot.” Appellee, Florence Stevens, who was complainant below, is the owner of Lot Six, Block Two, of said subdivision, which lot is located near the lot owned by appellant.

Appellee holds title- to her lot subject to the same restrictive covenants above quoted, which covenants, or covenants of similar import, were included in many (if not all) of the deeds by which lots in said subdivision were conveyed by the owners of the subdivision to the original purchasers of lots therein.' Appellee, as complainant below, brought her bill of complaint against appellant, asserting that the latter was violating the restrictive covenants imposed upon his title to said Lot One by using a building erected by him upon said premises for the purpose of conducting a vocal studio to which numerous persons came from day to day to receive singing lessons under the teaching of appellant.

The bill prayed that appellant be enjoined from further using said premises in the manner stated. Appellant answered, in effect denying all material allegations of the bill, except ownership of the property, and claimed an estoppel against complainant by reason of the acquiscnce of the latter in the continued breach by other lot owners of the covenant “that only one residence shall be erected on each lot,” and further averring a waiver of all the covenants above quoted by reason of a general disregard and breach thereof, acquiesced in by complaniant and other lot owners.

Upon consideration of the pleadings and evidence the chancellor entered a final decree perpetually enjoining appellant from “appropriating or applying” the premises owned by the appellant “to the purposes of a vocal studio, or any simiar use, by whatever name called or known, and from all use or applicatoin of said lot, or the building thereon, or any portion of same, for any purpose whatsoever except that of ‘residence purposes only,’ and that in the ordinary common acceptation- of that term. ’ ’ From that decree this appeal was taken.

The evidence discloses that appellant, by profession, is a teacher of vocal music and earns his living principally by following that avocation. In 1920, appellant erected a two-story, house on his lot in Lingerlong Subdivision, the plans for which were drawn by himself. The house so built has two large rooms and a lavatory downstairs, four rooms and bath upstairs, and a porch upstairs -and downstairs.

The downstairs rooms are designated by appellant as a reception room and music room, the former about ten feet square, the latter about thirty-four feet long and twenty-three feet wide, ceiling of both rooms being twelve and one-half feet high. The entrance to the house is between the reception room and music room. There is no kitchen on the ground floor, but bath room and kitchen are located on the second floor. There is a porch out beyond the kitchen door on the second story, and stairs leading from said porch down into the yard on the outside of the house.

The character of the other upstairs rooms is not clearly disclosed by the evidence, though the inference therefrom is that they are perhaps bedrooms, nor does it appear whether or not there is a stairway inside the house. Appellant lives in the house with his wife. It is his usual place of residence. Besides using the lower floor for the purpose of giving vocal lessons, it is the only part of the house in which the appellant and his wife entertain any persons except their most intimate friends, it being the only part of the house adequate for social functions.

In this house appellant, as teacher, conducts singing-lessons beginning on some days at about 7:15 o ’clock A. M. and other days at 8:00 to 9 :00 o ’clock A-. M., and continuing intermittently, through the day until about 8:00 o’clock P. M., when the lessons customarily cease. Sometimes students are taught between 8:00 P. M. and 9:15 P. M., though this is not the usual custom. Usually, appellant gives only individual lessons, but “at odd times” he trains choruses. One chorus was trained by him over a period of six to eight weeks, the lessons being given one night each week, ceasing about 9:15 P. M.

On other nights, rehearsals were held in the building, being discontinued shortly before 10:00 o’clock P. M. Within the limits of time above stated, appellant Avas Avilling to instruct as many acceptable pupils as his health and strength Avould permit. He had given as many as twenty lessons per day, this, howeAmr, being unusual.

The average number of pupils taught ranged from about forty-five a Aveek, when the studio Avas originally opened, to about thirty-six a week, when the testimony in this suit was taken, the number of lessons decreasing because of prosecutions instituted against appellant in the municipal court of Tampa. Appellant teaches on each day of the Aveelc, except Sunday, lessons on Saturday, however, being infrequent and not ordinarily given. Each individual lesson extends over a period of one-half hour, and appellant charges therefor the sum of $3.50.

Appellant testified that he had taught singing lessons in Tampa and elsewhere for about forty years and that it was the custom in the City of Tampa and elsewhere for professional singing teachers to give lessons and conduct their classes in the home of the teacher. The evidence does not sustain appellant’s contention, advanced in his answer below, that appellee is estopped to insist upon an observance of the restrictive covenants,, or that-there has been a waiver thereof. Schadt v. Brill, 139 N. W. Rep. 878; 45 L. R. A. (N. S.) 726; Sayles v. Hall, 210 Mass. 281; 96 N. E. Rep. 712; 41 L. R. A. (N.

S.) 625; Brown v. Huber, 88 N. E. Rep. 322; 28 L. R. A. (N. S.) 705; Lattimer v. Livermore, 72 N. Y. 174; Morrow v. Hassleman, 69 N. J. Eq. 617; 61 Atl. Rep. 369; Alderson v. Cutting, 163 Cal. 503; 126 Pac. Rep. 157. Neither do we. find any harmful error in the rulings of the Chancellor upon the several objections interposed to the evidence. The only substantive question presented for determination is whether or not the use by appellant of his premises-in the manner described is a violation of the restrictive covenants hereinabove quoted.

The covenants here under consideration relate to the use 'to be made of the property rather than to the character of the building to be erected upon it (see Fortesque v. Carroll, 75 Atl. Rep. 523; Hoffman v. Parker, 86 Atl. 864; Kurtz v. Potter, 60 N. Y. Supp. 764, affirmed 60 N. E. 1114), but in this instance the character of the building-erected by appellant, particularly its interior arrangement, is illuminating as an indication of the use for which, it was constructed. Boyleston v. Holmes, 114 N. E. Rep. 522.

Covenants restraining- the free use of real property, although not favored, will nevertheless be enforced by courts of equity where the intention of the parties is clear in their - creation, and the restrictions and limitations are confined to a lawful purpose and within reasonable bounds,, unless the rights created by such covenants have been, relinquished or otherwise lost.

Such covenants are strictly construed in favor of the free and unrestricted use of real property, but effect will be given to the manifest intention of the parties as shown by the language of the entire instrument in which the covenant appears, when considered in connection with the circumstances surrounding the transaction.

Due regard must be had for the purpose contemplated by the parties to the covenant, and words used must be given their ordinary, obvious meaning as. commonly understood at the time the instrument containing the covenants was executed, unless they have acquired, a peculiar meaning in the particular relation in which they appear, or in respect to the particular subject matter involved, or unless it clearly appears from the context that the parties intended to use them in a different sense. Mayes v. Hale, 82 Fla. 35; 89 South. Rep. 364; Kitching v. Brown, 180 N. Y. 414, 70 L. R. A. 742, 73 N. E.

Rep. 241; Hutchinson v. Ulrich, 145 Ill. 336; 21 L. R. A. 391; 34 N. E. Rep. 556; Kenwood Land Co. v. Hancock Investment Co., 169 Mo. App. 715; 155 S. W. Rep. 861; Godfrey v. Hampton, 127 S. W. Rep. 626; Kitchen v. Hawley, 131 S. W. Rep. 142; Harris v. Roraback, 137 Mich. 292; 100 N. W. Rep. 391; Pearson v. Adams (Can.), 27 Ont. L. Rep. 87; Highland Realty Co. v. Groves, 113 S. W. Rep. 420; 18 C. J. 385. The expressed intent of the parties is the controlling factor.

Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant. Easterbrook v. Hebrew Ladies’ Orphan Society, 85 Conn. 287; 82 Atl. Rep. 561; 41 L. R. A. (N. S.) 615; 18 C. J. 388.

The covenant under which appellee claims the right to injunctive relief is the one which provides that appellant’s property “is to be used for residence purposes only.” There is no ambiguity in the quoted expression, nor doubt as to its meaning, when considered in the light of the entire transaction in which it was used and its component words are accorded their ordinary, well understood meaning. The word “residence” is one of multiple meanings,but the context in which it is used in this instance clearly indicates its meaning to be a dwelling house where a person lives in settled abode.

The word, in this instance, relates solely to the use or mode of occupancy to which the property may be put. The word “only” is a limiting term -which qualifies the word with which it is grammatically connected.

As here employed it is synonymous with the word “solely,” or the equivalent of the phrase “and nothing else.” It qualifies the phrase “to be used,” with like effect as if the covenant had read that the property “is to be used only for residence purposes.” When so employed and understood, it necessarily excludes all uses of the property other than for residence purposes, and the interposition of other negative terms specifically prohibiting the use of the property for business, mercantile or other similar purposes are unnecessary.

Appellant admittedly uses the premises in question for “residence purposes,” but it is obvious from the evidence, that he does not use the building thereon situate for resi-' dence purposes only. In design, the building differs essentiallytially from the usual residence or dwelling. In use, it appears to be about equally divided between business and a place of residence.

Appellant contends that its use as a place of business is properly incidental to its use as a residence, but the distinctive arrangement of the ground floor and its particular adaptability to the purposes of appellant’s business or profession, as well as the unusual location of the kitchen on the second floor and the stairway on the outside of the building, strongly'indicate that it was designed with quite as much- regard for its usefulness as a music studio as for a place of residence, a view which finds ample support in the use to which the building is actually put as disclosed by the evidence.

Instances are not lacking in which other courts have held or intimated that property restricted to use for residence purposes, so. long as it is in good faith used for such, may be also used to a minor extent for the transaction of some classes of business or the following of some professional pursuits so long -as the latter use is in fact casual, infreqiient or unobtrusive and results in neither appreciable damage to neighboring property nor inconvenience, ¿nnoyance or discomfort to neighboring residents.

This view, however, further requires such additional use to be so reasonably incidental to the prescribed use and such a nominal or 'inconsequential breach of‘the covenants as to be in substantial harmony with the purpose of the parties in the making of the covenants, and without material injury to the neighborhood. Dorr v. Harrahan, 101 Mass. 531; Smith v. Graham, 147 N. Y. Supp. 173, affirmed 112 N. E. Rep. 1076; Morrow v. Hasselman, 61 Atl. 369; Gallan v. Hussar, 158 N. Y. Supp. 895.

And where the defendant claims that complainant will not be injured by the alleged breach of the covenant, the evidence must comprehensively and convincingly sustain that assertion. Lignot v. Jaekle, 65 Atl. Rep. 221; Goater v. Ely, 82 Atl. Rep. 610. The appellant had notice of the restrictive covenants when he purchased his property. Morrow v. Hasselman, 61 Atl. Rep. 369. In its broadest aspect, the view just referred fb will not justify the use made by appellant of the premises in question.

That use is neither casual, infrequent nor unobtrusive,-nor is it so-incidental to appellant’s use of the premises as a residence as to have been reasonably within the contemplation of the parties to the covenant.

Appellee is undisputed in her testimony that she purchased her lot and built her home in Lingerlong Subdivision in contemplation of the restrictive covenants and because she desired a home ' ‘ away from the noise of business. ’ ’ The sounds which necessarily emanate from a vocal studio where a large number of pupils are taught — in this instance an average of from six to eight pupils per day, consuming an aggregate time of three to four hours, divided into one-half hour instruction periods distributed throughout the day and early evening, five to six days a week, in a residential neighborhood — can not be said to be without appreciable annoyance, inconvenience, or injury to complainant, a neighboring resident.

Such use does not substantially harmonize with, but violates the obvious purpose of a covenant restricting the property to use for "residence purposes only.” Highland Realty Co. v. Groves, 113 S. W. Rep. 420; Booth v. Knipe, 122 N. E. Rep. 202, reversing jurgment of Supreme Court, App. Div., 165 N. Y. Supp. 577, and affirming judgment of special term; Hyman v. Tash, 71 Atl. Rep. 742; Parker v. Nightengale (Mass.), 6 Allen 341; Smith v. Graham, 147 N. Y. Supp. 773; affirmed 112 N. E. Rep. 1076; Iselin v. Flynn, 154 N. Y. Supp. 133; Scott Co. 1. Roman Catholic Bishop, 163 Pac. Rep. 88; Dorr v.

Harrahan, 101 Mass. 531. In Tonnelle v. Hayes, 194 N. Y. Supp. 181, the Supreme Court of New York, App. Div., declined to enjoin the use as a vocal studio of a building situate within the limits of the so-called "Murray Hill” restrictions in New York City, but those restrictions were by no means as comprehensive or exacting as those now under consideration. Decree affirmed. Brown, C. J., and Whitfield concur. Ellis and Buford, J. J., dissent.