MONIGLE et al.
Action by William F. Monigle, Jr., and others, against Mildred Darlington to enjoin defendant from conducting business of hairdressing and manicuring in basement of her residence in alleged violation of restrictive covenant contained in deed to defendant's property which was part of development area. The Court of Chancery, Wolcott, Chancellor, held that restrictive covenant that land should be used for residential purposes only could not be so construed as to eliminate all business uses in area in view of fact that later restriction specified what institutions and businesses were prohibited.
[32 Del.Ch. 138] Albert L. Simon, of Wilmington, for plaintiffs.
H. Albert Young and Stephen E. Hamilton, Jr., of Young & Wood, of Wilmington, for defendants.
The parties all reside in a development known as Latimer Estates. The suit seeks to enjoin the defendant from doing hairdressing and manicuring in the basement of her residence.
The defendant became the owner of the premises where she now resides by deed
dated October 11, 1950 which contains, inter alia, the following restrictive covenants:
‘ 1. The land shall be used for residence purposes only and no building of any kind whatsoever shall be erected or maintained thereon except private single dwelling houses and private garage for the sole use of the respective owners or occupants of the plots upon which such are erected.
‘ 6. There shall not be erected, permitted, maintained or operated upon any of the land included in said deed any foundry, graveyard, hospital, sanitarium or institution of like or kindred nature, stable of any kind, cattle yard, hog pen, fowl yard or house, cesspool, privy vault or any form of privy, nor any plant or manufacturing establishment of any kind, nor billboard, nor any noxious, dangerous or offensive thing trade or business whatsoever, nor shall any public garage or gas filling station be maintained, nor live poultry, hogs, cattle or other live stock be kept thereon.’
[32 Del.Ch. 139] The external appearance of the defendant's home is unaltered from its appearance prior to the purchase by her except for the installation of a porch and a backyard light, and the placing of a 15-inch sign in one of the windows of the first floor with the name ‘ Darlington’ on it. No interior alterations have been made by the defendant on either the first or second floors of the house which she uses for purely residential purposes.
The defendant, prior to her establishment of residence in Latimer Estates, operated a beauty shop on Maryland Avenue in the City of Wilmington. A short time prior to the purchase by her of the Latimer Estates property, she sold her beauty shop in Wilmington and with the proceeds of that sale purchased her property in Latimer Estates. Just prior to the closing of her Wilmington establishment, the defendant let it be known to her customers that she planned to continue hairdressing and manicuring in a more limited fashion in the basement of her new home in Latimer Estates.
The defendant had certain internal structural additions or alterations made in the basement of her Latimer Estates home. Plumbing installations were made to install two washbasins and heavier electrical wiring installed to permit the use of hair dryers. Two booths were constructed in the basement each of which has one of the two washbasins.
The defendant has a State License to operate a beauty shop. She performs hairdressing and manicuring by appointment and makes such appointment every day of the week except Wednesday and Sunday, occasionally accepting evening appointments during the week.
The defendant employs no assistants in connection with the activities conducted in the basement of her home. She lives in her home with her two children and does all of her own housework. She has a small amount of independent income and derives additional gross income from hairdressing [32 Del.Ch. 140] and manicuring of approximately $45.00 to $50.00 a week. She has not advertised since her ...