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Welshire, Inc. v. Harbison

Court of Chancery of Delaware, New Castle County

April 9, 1952

WELSHIRE, Inc.,
v.
HARBISON et ux.

Page 122

James R. Morford, William Marvel, and Morton E. Evans (of Morford, Bennethum, Marvel & Cooch), all of Wilmington, for plaintiff.

Stephen E. Hamilton, Jr. (of Logan, Marvel & Boggs), Wilmington, for defendants.

BRAMHALL, Vice Chancellor.

Plaintiff is the owner of a tract of land situate in Brandywine Hundred, New Castle County, State of Delaware, known as 'Welshire'. Defendants are the owners of a house and lot situate in this development. In July, 1937, through the transfer of deeds and the recording of a plot, plaintiff divided this tract into building lots, each lot having a frontage of approximately 150 feet with approximately the same depth. By means of said deeds plaintiff also provided general building restrictions on all of the lots in the development. The pertinent restrictions provided: that only one residence should be erected on any one lot as shown on the plot, that there should be a setback or building line of 50 feet from Carr Road, on which the property of defendants faces, a setback of 50 feet on lots facing Shipley Road and a setback of 45 feet as to other lots on other roads, a side setback of 30 feet and a provision that before any owner could build a house on this development he must first submit to plaintiff for approval his plans therefor.

Plaintiff was able to sell only one lot on this development, the lot of defendants, from 1937 to 1947. In 1947 another[32 Del.Ch. 365] lot was sold in the same block as the lot of defendants. At about the same time plaintiff attempted to make a change in the development. It had a plan prepared and recorded, in which the size of the lots was reduced from 150 feet to approximately 100 feet. In 1950 plaintiff sold a third lot. The second lot sold was of approximately the same size as the lot of defendants; the third lot and part of another lot had a frontage of approximately 105 feet. Both the other two lot owners signed agreements, releasing the plaintiff from their right to enforce the 1937 restrictions. Defendants refused to do so. In 1951 plaintiff again proceeded with the revision of its lot plan by conveyance and by recording a new plot, the conveyances including a revision of the old restrictions. Under these restrictions the size of the lots was reduced from approximately 150 feet in frontage to approximately 100 feet, the length was somewhat shortened and the setback from the street line and the side setbacks were also reduced. Plaintiff, however, made no change in the size of the lot, or in the restrictions, in the block in which defendants' lot is situate. The size of the two lots in the development across the street from defendants' property was not changed. The defendants and the other two owners of the lots sold had each in the meantime erected very substantial residences on each of the lots. Defendants objected to plaintiff's proposal to change the size and the restrictions.

Plaintiff contends that it is entitled to a favorable judgment on its petition because: (1) changed conditions have rendered the old restrictions inoperable and therefore void; (2) the lots affected by the proposed changes in the restrictions are too remote from the property of the defendants to cause defendants any injury; (3) that in any event defendants are not entitled to equitable relief.

Defendants contend: (1) that there has been no radical change in the character of the surrounding neighborhood as to destroy the essential purpose of the original restrictions; [32 Del.Ch. 366] (2) the 1937 deeds created mutual rights for both plaintiff and defendants and all others who may purchase lots in Welshire; (3) plaintiff in no event is entitled to a declaration that it may modify the restrictions of 1937 or have them declared null and void and impose new ones on the lots of Welshire.

Page 123

In the determination of this case it is necessary to consider:

1. Whether or not there has been a radical change in the development sufficient to justify the granting of this petition;

2. Whether or not defendants are in a position to object to the granting of plaintiff's petition?

1. Change in Development

The purpose of the original restrictions of 1937 was obviously to make the lots in the development attractive to prospective purchasers by protecting them in the enjoyment thereof. At the time of the beginning of this development there were no other large developments adjacent to this property. Since then there have been several developments in the immediate neighborhood, upon which a number of properties have been erected. In order to compete with these other developments, it was testified that plaintiff must install roads, water and sewage, the total cost of which would be approximately $12 per front foot. Plaintiff contends that the cost of these improvements would be so great that it would be impossible to sell lots of the size of the lots in Welshire for the price which it would have to demand in order to realize a profit.

At the time of the beginning of this development there were no properties erected on any of the lots. From 1937 until the institution of this action only three lots had been sold. Upon these three lots, however, the owners had erected very attractive and desirable homes. There was therefore no radical change of any kind in the development itself. Adjacent[32 Del.Ch. 367] to or in the vicinity of Welshire there are other developments, in which attractive so-called ranch type homes, costing in the neighborhood of from $20,000 to $25,000 each, are being erected. These developments will have good roads and also water and sewage. There has been no other change in the properties surrounding Welshire which would in any way affect the development of Welshire.

Where, under a general plan of development, the owner of property divides it into building lots and places upon them uniform restrictions, any subsequent owner of any of these lots may enforce the restrictions against any other grantee or present owner. Jackson v. Richards,26 Del.Ch. 260, 27 A.2d 857; Hooker v. Alexander,129 Conn. 433, 29 A.2d 308; S ...


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