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Injunction. Before Judge Crow. Dougherty Superior Court. October 25, 1954.
DUCKWORTH, Chief Justice.
A consideration of the entire context of the restrictions applying to the subdivision shows that the parties thereto intended to allow only one primary dwelling on plots of not less than 60 feet of street frontage to which a secondary building, a garage, might be built appurtenant; and the undisputed evidence showing that the defendant, after purchasing an additional one-half lot adjacent to a lot of 60-foot frontage containing a dwelling and a garage thereon, was constructing a third building on a plot with a street frontage of 90 feet, thus leaving a less than 60-foot frontage to each building, the court erred in refusing to grant the temporary injunction.
The plaintiff in error, W. F. Mitchell, brought an action in Dougherty Superior Court against A. Eugene Denson, the defendant in the lower court, defendant in error here, to enjoin him from constructing a building on a lot in a named subdivision in violation of certain restrictive covenants attached as Exhibit "A" to the petition. The other plaintiffs in error are intervenors praying for the same injunctive relief. The pertinent portions of the restrictions are as follows: "(b) that he will not move on said premises any old building of any kind, nor erect nor permit to be erected upon any portion of said premises any dwelling costing less than $3000.00; said building to be erected on a plot of not less than street frontage of sixty (60) feet . . . (c) There may, however, be erected or constructed on said plot, in conjunction with any private residence, a garage, such as will appropriately appurtenant to the building erected on said plot."
The defendant filed a general demurrer and several special demurrers, and an answer admitting the restrictions but stating that the dwelling which he is erecting or beginning to erect is placed on Lot No. 215 and one-half of Lot No. 214, and the total frontage is 90 feet. On the interlocutory hearing the verified pleadings, the building restrictions, and a recorded plat were admitted in evidence without objection. In addition, certain photographs, the affidavit of the photographer, and the testimony of the defendant were allowed in evidence. Thereafter, the court refused to grant a temporary injunction and dismissed the restraining order, but granted a supersedeas pending the result of the appeal. The exception here is to this judgment.
There is no ambiguity in the restrictions, which forbid the erection of more than one dwelling and a garage appurtenant thereto upon a 60-foot lot. As to his 60-foot lot, the defendant seems to have thus understood and, accordingly, erected buildings in compliance with the restrictions. The controversy arose solely because he then purchased not a 60-foot lot, but a 30-foot lot, adjacent to the one he already owned and is undertaking to erect another building on the 90 feet he now owns. If the new building is on the 60-foot lot, it violates the restriction. If it is on the 30-foot lot, it violates the restriction, and the defendant does not deny either of these statements, but contends that he can evade both of them by stating the facts differently and saying he is undertaking to erect two residences on a lot of 90 feet, which is not covered by the restrictions. This case turns upon whether by thus shuffling words the restriction can be nullified. In Smith v. Pindar Real Estate Co., 187 Ga. 229 (1) (200 S. E. 131), this court said: "A restrictive covenant in a deed that 'A building lot shall be a lot . . . of not less than sixty (60) feet, and purchasers are expressly restricted to the . . . [erection] of not more than one residence upon a building lot,' definitely establishes sixty feet as the minimum width of a lot on which a residence may be erected." (Italics ours.)
The defendant concedes the existence of the recorded restrictions, his actual knowledge thereof, and that his land is subject thereto, but contends that he has not and is not threatening to violate the same. This position of the defendant renders inapplicable the rule stated in Jordan v. Orr, 209 Ga. 161 (1a) (71 S. E. 2d 206), that generally the owner of the fee is entitled to use his property for any lawful purpose, and one claiming a restriction upon such use must clearly establish such restriction. Neither would the ruling in David v. Bowen, 191 Ga. 467, 469 (12 S. E. 2d 873), that limitations upon such use by implication must be strictly construed, be applicable. The intention of the parties as expressed in the restrictions must be given effect. Randall v. Atlanta Advertising Service, 159 Ga. 217 (125 S. E. 462). That intention is plainly stated that only one residence shall be placed upon a 60-foot lot, and can be effectuated only by requiring for each house a minimum of a 60-foot lot. The undisputed evidence shows a violation of the restriction, and, accordingly, the court erred in denying the injunction.
J. Neely Peacock, Jr., contra.
S. B. Lippitt, for plaintiffs in error.
Saturday May 23 03:06 EDT

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