#### J. H. McLESKY v. J. F. HEINLEIN.

(Filed 27 January, 1931.)

Deeds and Conveyances C g — Held: character of develoi>ment had not so changed as to warrant equity to declare restrictions inoperative.

Restrictive covenants in deeds against the use of the property for other than residential purposes will not be strictly enfoi-ced when the character of the surrounding land has been so substantially changed by the growth of the city as to make the enforcement of the restrictions inequitable and unjust, but in this case *held:*the facts found do not show such substantial change in the character of the neighborhood as to call for the operation of this equitable rule, and the restrictions are enforceable, and the fact that a few of the owners of lots near the plaintiff’s property had released their rights to insist upon the observance of the restrictions and that the development was divided into separate subdivisions is insufficient to change this result.

Civil actioN, before *Harwoocl, Special Judge,*at October Term, 1930, of MeckleNbuhg.

The cause was submitted upon facts agreed, from which it appears that on 2 August, 1930, the plaintiff and the defendant entered into a certain written contract whereby the plaintiff agreed to lease to the defendant lot No. 12, Block E, of Myers Park, made 16 December, 1912, and recorded in Book 230, page 123. The proposed lease provided that the lessee should have possession and use of said lot, free and clear “of building restrictions and restrictions affecting the use and occupancy thereof for business purposes for a period of five years,” etc. The defendant agreed to lease the property, but when the plaintiff tendered the lease, the defendant refused to accept it upon the ground that the plaintiff “did not have or could not convey to the defendant the unrestricted use and occupancy of said lot,” etc.

The facts upon which the defendant refused to accept the lease were substantially as follows:

*2911. That tbe Stephens Company, tbe original owner of a large acreage covering tbe *locus in quo,*bad subdivided tbe property into various blocks and lots, and thereafter conveyed said property, including tbe *locus in quo,*by deeds containing restrictions (a) “that tbe property shall be used for residence purposes only and shall be occupied and owned by people of tbe white race only”; (b) a number of other restrictions not pertinent to this controversy.

Block E, of Myers Park plat, contains thirteen lots. Said lot No. 12 fronts on tbe Providence Boad. Upon said Providence Boad business development has become very active, so that on tbe property adjoining tbe property of plaintiff a large store building, containing two grocery stores and one drug store over which there is a public dance ball, has been erected. South of tbe *locus in quo*“and for a distance of approximately 2,500 feet a considerable portion of tbe property fronting on tbe Providence Boad is unrestricted and has commanded a high price on account of tbe fact that all of tbe unrestricted portion may and part of it is now being used for business purposes; and on said Providence Boad to tbe south of tbe *locus in quo*and a distance of approximately 1,100 feet, there is located a miniature golf course; that to tbe south of said golf course on said Providence Boad, a distance of approximately 1,500 feet from tbe *locus in quo,*is located a large gasoline filling station; that to tbe south of tbe said filling station a distance of approximately 1,600 feet from tbe *locus in quo*is located seven mercantile stores; that to tbe south of said seven stores and a distance of approximately 2,500 feet from tbe *locus in quo*on said Providence Boad are located three grocery stores; that on said Providence Boad, and approximately 500 feet to tbe north of tbe *locus in quo,*is located tbe property known as tbe Home Place of Mac. D. Watkins, fronting approximately 500 feet on said Providence Boad, which is unrestricted.”

Tbe owners of lot No. 13, fronting Providence Boad, and adjoining tbe *locus in quo,*have executed a release, releasing tbe lot of plaintiff “from any and all restrictions, restricting or limiting its use and occupancy for business purposes save that it shall be occupied and owned by people of tbe white race only.”

Tbe owners of lots 2, 3, 4, 5, 6, 8, and 12 in said block have released to tbe owner of lot 13 for tbe purpose of permitting tbe owner of said lot 13 to erect an art studio on said lot “to do any and everything necessary to tbe proper conduct of tbe business of a photographer.”

Tbe cause was beard and tbe following judgment entered:

“This cause, coming on to be beard before bis Honor, J. H. Harwood, judge presiding at tbe October Special Term, 1930, of tbe Superior Court of Mecklenburg County, and being beard upon tbe pleadings and agreed statement of facts submitted by tbe parties as appears in tbe *292record; and tbe court being of tbe opinion and finding as matters of legal inference upon tbe facts so agreed:

“That, on account of tbe growth and expansion of tbe city of Charlotte, tbe extension of its business district; tbe establishment and operation of business property immediately adjacent to tbe *locus in quo*and tbe property shown on said Block E, fronting on tbe Providence Road; that tbe owner of lot No. 13, tbe only other lot in said ¡subdivision fronting on said Providence Road, has by a proper release, released tbe *locus in quo*of any and all conditions and restrictions limiting or affecting its use and occupancy for business purposes; that each block or subdivision in tbe development known as Myers Park was developed as a separate unit; that tbe Stephens Company has conveyed all tbe lots shown on said Block E, and does not own any property in close proximity to said Block E; that tbe character of tbe property fronting on tbe Providence Road immediately adjacent to tbe *locus in quo*and tbe subdivision known as Block E, has so changed as to make it impossible to accomplish tbe puiqooses intended by tbe restrictive covenants set out in tbe original deeds conveying tbe property fronting on said Providence Road all as set out in tbe agreed facts.

“That, by reason of tbe changed conditions aforesaid, it is inequitable and unjust, and detrimental to tbe market value of tbe property, to require tbe enforcement of said restrictions and that tbe property of tbe plaintiff described in tbe complaint is no longer subject to said restrictions.

“It is, therefore, ordered, adjudged and decreed that tbe defendant specifically perform bis contract with plaintiff for tbe lease of said premises and that plaintiff recover of tbe defendant tbe costs of this action, to be taxed by tbe clerk.”

From tbe foregoing judgment tbe defendant appealed.

*J. L. DeLaney for plaintiff.*

*Brock Barkley for defendant.*

BeogdeN, J.

There is no new or novel proposition of law presented by tbe record. Tbe sole question is whether under tbe agreed facts tbe case is controlled by *Johnston v. Garrett,*190 N. C., 835, 130 S. E., 835, or *Starkey v. Gardner,*194 N. C., 74, 138 S. E., 408. This Court has held “that tbe subdivisions of Myers Park are each a separate, distinct and integral development.” *Stephens Co. v. Homes Co.,*181 N. C., 335, 108 S. E., 233; *Johnston v. Garrett,*190 N. C., 835.

When persons desiring to become home owners purchase property in a subdivision protected by certain desirable restrictive covenants, tbe security of such covenants ought not to be destroyed by slight departures *293from the original plan, and valid restrictions appearing in all the deeds for lots in such subdivision should not be eliminated and wiped out because of immaterial violations of such restrictions. One of the essential tests prescribed, for determining whether restrictions should be eliminated was thus expressed in *Starkey v. Gardner, supra:*“However, it is equally true that if the character of the community has been changed by the expansion of a city and the spread of industry or other causes resulting in a substantial subversion or fundamental change in the essential character of the property, then, in such cases, equity will not rigidly enforce the restriction.”

Therefore, the paramount question is whether the facts in the case at bar bring the controversy within the principle applied in the *Starkey case.*There is no fact tending to show any violation of the restriction within the subdivision itself, except the fact that the owners of seven lots have signed releases in order to permit the owner of lot 13 to erect an art studio, on said lot. The nature of such building does not appear. However, we are of the opinion that the evidence does not show such “substantial subversion or fundamental change in the essential character of the property” as to warrant the removal of the restrictions.

Reversed.