Citation. 22 Ill.116 N.H. 814, 367 A.2d 599 (1976)
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A development corporation bought a lot (lot 26), which was adjacent to a large tract of land that the corporation had bought and subdivided. The larger tract of land was landlocked. Lot 26 was purchased to allow residents of the subdivision access to the Pine River Pond, but was under a common scheme of restrictions.
Synopsis of Rule of Law.
Courts no longer strictly construe the words of restrictions in deeds, but rather, seek to give effect to the intent of the parties to a covenant.
Facts.
The original developers of the area, the Scribners, laid out 48 shore lots including lot 26 and more back (landlocked) lots which together formed Scribner Park subdivision. Some of the shore parcels were conveyed to Plaintiffs or their predecessors in title. Pine River Development Corporation (Defendant) purchased lot 26 and a large tract with no frontage to the water. The Defendant subdivided the large tract into 161 lots and sold 147 of them to buyers who formed the Pine River Association, Inc. The Defendant then conveyed lot 26 to the Pine River Association so that its members could have access to the water for swimming, docking boats, and other purposes. The Defendant entered onto lot 26 and cleared the land for this purpose. All of the deeds to the frontage lots have restrictions. The number of cottages to be built on any one lot was restricted. Mobile homes were prohibited. Permanent buildings were required, with finished exteriors and modern plumbing and the cottages ar
e required to be set back a certain distance. Two other restrictions concern utility easements and drainage rights. The residents of the frontage lots sued the Defendant to enjoin the use of lot 26 as a common boating or beach area or a common entrance and exit for access to the beach. The lower court entered a permanent injunction against the Defendant, its successors or assigns. Defendant appealed.
Issue.
Do restrictions on dwellings or residences limit the use of the land itself apart from any building?
Held.
Yes. Defendant’s exceptions overruled (Judgment affirmed).
In older times, courts would strictly construe the restrictions in a deed. If the language of the restriction did not specifically prohibit the use, then the use was allowed. The court found this viewpoint of strict construction is no longer operative.
The court will attempt to give effect to the intent of the parties to a restrictive covenant. In this case the court held that the intent of the parties in forming the covenant was to make the frontage lots residential only, and that the restrictions cannot be read to allow for the use proposed by Defendants.
Given the surrounding residential use and the conduct and intent of the parties, the lower court was not required to find that the use of lot 26 by potentially hundreds of people at all hours for many recreational purposes was within the scheme of residential development in the area.
Discussion.
Obviously, this case would have been subject to a different outcome had the case been heard in a jurisdiction which calls for strict construction. This court seemed to be swayed mostly by the potential nuisance the Defendant’s proposed use would create for the other frontage owners and did not sway from the general scheme of the subdivision.
