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Cowling v. Colligan

Law Dictionary

Law Dictionary

Featuring Black's Law Dictionary 2nd Ed.
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Property Law Keyed to Cribbet

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Bloomberg Law

Citation. 22 Ill.158 Tex. 458, 312 S.W.2d 943 (1958)

Brief Fact Summary. Property owners sought an injunction to prevent Defendant from using a lot under restrictive covenant for business purposes, even though Defendant’s lot is immediately adjacent to business lots which are unrestricted and the character of the neighborhood has changed since the restrictions were formed.

Synopsis of Rule of Law. When a neighborhood is restricted to residential use only, the non-complaint of property owners when churches are built on restricted lots will be considered to not constitute a waiver or abandonment of the restriction, and businesses will still be excluded.

Facts. This suit is a class action brought by a class of property owners in a neighborhood, restricted by covenant to residential purposes only, to enjoin Defendant from using one of the lots on the edge of the neighborhood for business purposes. The subdivision consists of 49 tracts ranging in size between 4 to 7.81 acres, and has churches on four of the lots with several other tracts sold to church bodies contemplating building churches. Defendant’s lot, which is in the subdivision, has no improvements on it except a small easily removable building for the storage of pipe. The property adjoining Defendant’s lot (which is tract 2) is outside the subdivision and unrestricted. The facts provide that a road that went through the neighborhood was a quiet country road at the time the restrictions were written, but is now a major road. The reasonable market value of Defendant’s lot restricted was found to be $10,000 per acre, and was worth $35,00 to $43,000 per acre unrestricted. The lowe
r court found that the restrictive covenant was valid and enforceable and not waived, but that the conditions surrounding Defendant’s lot made it inequitable to enforce the restrictions against Defendant, and thus, no injunction was issued. The Plaintiffs appealed.

Issue. Was the lower court correct in removing Defendant’s lot from the restrictions of the covenant?

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