Citation. 22 Ill.291 Mass. 477, 197 N.E. 224 (1935)
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Plaintiffs are a group of owners of summerhouses along the beach. The Van Dam (Defendant) is the owner of the land which, when the neighborhood was subdivided, was marshy and unsuitable for building. Now, there is an ice cream and victuals shop on the land.
Synopsis of Rule of Law.
A restriction, in order to attach as a benefit to the land, must not only benefit that land itself, but must also be appurtenant to that land. If not intended to benefit an ascertainable dominant estate, the restriction will not burden the supposed servient estate, but will be a mere personal contract on both sides. The dominant estate can be proven by a common scheme where restrictions will benefit the lots therein.
Facts.
Between July 1907 and January 1923, almost all the lots were divided and sold to various individuals, including Plaintiffs, with a restriction on its use. The restriction in the deeds states that only one dwelling house can be built on the lot, and the building may not cost more than $2500.00. If the owner of the lot wishes to build an outhouse, the owner has to seek permission of the grantors. The low and marshy portion of the land in the neighborhood was sold in 1923, to Robert Clark (Clark), subject to a restriction, which stated that only one dwelling house could be built on any one lot and the cost shall not exceed $2500.00 unless the plans for a house costing more are submitted to the grantor for approval, and no outhouse could be built without consent. Clark conveyed a lot in the marshy area to Defendant subject to the deed restrictions “in so far as the same may be now in force and applicable.” The phrase could not have created any new restrictions. The Defendant built
an ice cream and dairy store on the premises. The Plaintiffs sued for an injunction claiming a violation of the restrictions.
Issue.
Was the Defendant’s use of the marshy lot for business purposes a violation of the deed restrictions of the community?
Held.
Yes. Injunction granted.
A restriction, in order to attach as a benefit to the land, must not only benefit that land itself, but must also be appurtenant to that land. If not intended to benefit an ascertainable dominant estate, the restriction will not burden the supposed servient estate, but will be a mere personal contract on both sides.
The requirement of proving that a restriction placed on one lot will be appurtenant to another can be proved by showing a scheme which shows an inference of intent to be bound. The existence of such a building scheme has often been relied on to show an intention that the restrictions imposed on several lots are intended to apply to every other lot.
Neither the restricting of every lot within the area, nor absolute identity of restrictions placed upon different lots, is essential to the existence of a scheme. Extensive omissions or variations will tend to show that no scheme exists and that the restrictions are merely personal contracts.
In general, the restriction or equitable easement cannot be created in favor of land owned by a stranger. However, an earlier purchaser in a development has long been allowed to enforce against latter purchasers, the restrictions imposed by deed in pursuit of a scheme of restrictions.
Discussion.
The court was convinced that the developers here intended that no part of this development should be used for commercial purposes. The land on which the Defendant built a commercial establishment was not suitable for building at the time the land was subdivided. This court relaxed the privity requirement in order to find a common scheme of restrictions.
