- Defendant owns lot 86 of the green lawn subdivision which is a dwelling house – the D’s wanted to erect a gasoline filling station at the rear end of the lot but was enjoined by decree to not allow them to do so.
- Plaintiff’s argument – they are owners of the adjoining land, and both trace title back to the original proprietors of the subdivision; defendants lot is subject to a negative easement barring a use detrimental to the enjoyment and value of their neighbors.
- D’s Argument – insist that no restriction appears in there chain of title and they purchased without notice of any reciprocal negative easement, and deny that a gasoline station is a nuisance per se.
- Both P and D’s lot run to a common owner, whereupon all the successive prior owners had easements attached to their land.
- D’s previous owner, McClaughlin, sold them the land, but the restrictions were not mentioned therein.
Did the defendants have actual or constructive notice of the negative easement upon purchasing the lot?
Owners of a lot are put on “notice” when the recorded previous deeds have mention of the covenant and the neighborhood appears to be residential upon buying thereof.
(1) Covenant runs with the land; operative upon use of the land.
(2) Owner must have constructive or actual knowledge.
(3) Must start with a common owner.
- It is not personal to owners; but operative upon use of the land by any owner having actual, or constructive notice thereof.
- It is an easement passing its benefits to all future possessors.
- It must start with a common owner, cannot arise on one lot, by reason of other owners conforming to a general plan.
- Constructive notice
- Deed Recordings: The restrictions were upon defendant’s lot while it was in the hands of the common owners; and records show that deeds of the defendant lots had the negative easement on record.
Abstract Notice: When D moved into the lot in 1910, he should have known that the entire neighborhood was residential and that all the lots were in accordance with the general plan.