the general area. This does not constitute such infiltration as to render the agreement unreasonable or inequitable.
In Grady v. Garland, 67 App.D.C. 73, 75, 89 F.2d 817, 819,
which involved a similar restrictive covenant, where areas adjacent to the restricted properties were occupied by colored persons, the Court of Appeals stated:
'* * * The restriction is for the protection of the property to which it applies, and is not affected by similar conditions which may arise in adjoining property. Castleman v. Avignone, 56 App.D.C. 253, 12 F.2d 326. The object of the restriction here was to prevent the invasion of the restricted property by colored people, not the invasion of property surrounding it.
'If the facts here alleged were sufficient in equity to justify the setting aside of the covenant of restriction, all that would be necessary to defeat such a covenant would be the settlement of a few colored families in the immediate vicinity of the restricted area. * * * '
In Mays v. Burgess, supra, after declaring an identical covenant valid, the Court of Appeals stated the only question open for discussion was whether the purpose of the restrictive conditions had failed by reason of a change in the character of the neighborhood so that its enforcement would impose a hardship, rather than a benefit, upon those who were parties to its terms. The Court there quoted from its opinion in Hundley v. Gorowitz, supra (77 U.S.App.D.C. 48, 132 F.2d 24), which stated as the exception to the general rule that courts will uphold covenants of this type. 'Whenever * * * it is shown that the purpose of the restriction has been frustrated and that the result of enforcing it is to depreciate rather than to enhance the value of the property concerned, a court of equity ought not to interfere.'
It must be assumed that the signers of the restrictive agreement at the time of signing it were conscious of changes in ownership and occupancy from white to negro not only in the city at large, but in areas adjacent to their neighborhood, as to which the records of this Court, as well as the Court of Appeals, and a view of the area leave no doubt. With this in mind and desiring to maintain the white residential character of their immediate neighborhood, they took the necessary step to protect themselves from such encroachment, and entered into the covenant for the sole purpose of preserving their neighborhood as a white residential area. The only attempt to frustrate this purpose is the defendant Urciolo's sale of premises 83 W Street to the defendants Saunders.
As to property values, counsel for one of the defendants proffered testimony to the effect that sales to negroes bring a larger price than sales to white persons, and that this is true not only as to the first sale of a property, but as to subsequent sales in the vicinity. Urciolo, on his own behalf as defendant-intervener, stated that the price realized from sale of property to negroes increases after the first sale. On objection by plaintiff, the testimony was refused and proffer noted. Such testimony would have been of no probative value to show changed conditions or depreciation in values in the neighborhood covered by the restrictive agreement since entry into the covenant. Any evidence which might show that the property could be sold for a greater price if the restriction be lifted is not relevant or material, any more so than testimony in support of an application for change in zoning to the effect that prices are enhanced by a change from residential to commercial use. In each of these situations it is incumbent upon the person seeking the change to show such changed conditions as to render the existing restriction unreasonable. No such showing was made by the defendants in this case.
There was no evidence of inability on the part of any of the parties to the restrictive agreement to sell to white persons at a reasonable figure. On the contrary, the stipulation (as well as the agreement itself) indicates that three properties in the block were sold to white purchasers during the four-month period between the date of the restrictive agreement and the date of its recording, and the new owners signed the agreement and acknowledged their signatures to it.
The fact that the area encompassed by the agreement is relatively small, embracing 69 properties, on both sides of W Street in a long block between North Capitol and First Streets, rather than an area of several squares, is unimportant. The Court has been shown no authority which requires that a restrictive agreement cover any given number of pieces of property. On the contrary, restrictive agreements of this type have been sustained by the Court of Appeals when the number of properties was less. In Corrigan v. Buckley, supra, 30 owners of 25 parcels of land were parties to the covenant there upheld. In Cornish v. O'Donoghue, 58 App.D.C. 359, 30 F.2d 983, a covenant covering 34 properties, 17 on each side of the block of First Street, N.W., between Adams and Bryant Streets, was upheld.
In the instant case, the reasonableness of the agreement is indicated by the fact that the owners of each house facing on W Street between North Capitol and First Streets, with the exception of premises 7 and 13, which are owned and occupied by whites, were subscribers to the agreement, and at a time when there were no negroes in the block.
There has been no showing of a change in conditions by way of infiltration into the neighborhood covered by the agreement since entry into the agreement, such as to defeat its purpose. There has been no showing that the one change from white to colored occupancy in the general neighborhood since the execution of the agreement, namely, 56 Adams Street, constitutes such a change in conditions as to result in depreciation of the value of the W Street properties for white occupancy. There has been no showing that enforcement of the restriction would impose a hardship rather than a benefit upon those who are parties to its terms. Thus, there is no reason why the illegal purchase of one of the properties included in the agreement by a negro, with notice, should deny to the other parties to the agreement the protection which they sought by entering into the arrangement. The time which has elapsed since execution of the agreement is but short, and the purpose of the agreement is as existent now as at the time of its making.
In view of the findings of fact heretofore made and the law applicable thereto, the permanent injunctive relief herein prayed will be granted.
The costs of suit shall be borne by defendant-intervener Raphael G. Urciolo.
Counsel will present order of court consistent with this memorandum, on notice to opposing counsel and defendant-intervener.