is thus readily seen that upon the basis of the evidence before the Court, while enumerated lots are burdened with the several covenants, intervening lots in the same squares, on the same streets and in the same blocks are not burdened with the restrictive covenants.
This factual situation immediately raises the question of whether the fact that the covenants do not embrace all of the lots in the area makes the covenants unenforceable. The impact and effect of covenants running with the land have, of course, been the subject of voluminous opinions, and there is readily ascertainable conflict in the rules in several of the state courts. One of the most frequently cited cases upon the subject generally is that of Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687, 689, 37 L.R.A.,N.S., 1. In this case, the Court divided restrictive covenants into three classes, stating:
'For the particular purposes of this case such covenants may be broadly divided into three classes. In the first class may be placed those which are entered into with the design to carry out a general scheme for the improvement or development of real property. This class embraces all the various plans, generally denominated in the English cases as 'building schemes,' under which an owner of a large plot or tract of land divides it into building lots, to be sold to different purchasers for separate occupancy, by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises. In such cases the covenant is enforceable by any grantee as against any other, upon the theory that there is mutuality of covenant and consideration, which binds each and gives to each the appropriate remedy.'
The covenants contained in the deed of June 30, 1908, in addition to the prohibition of the sale or manufacture of liquor, prohibited the sale or resale of the property to persons of Negro blood and prohibited the construction of any building costing less than the sum of $ 1,000. It is obvious that the purpose of this covenant was, in the phraseology of the Korn case, to carry out a 'building scheme.'
One of the more interesting cases upon this question is O'Malley v. Central Methodist Church, 67 Ariz. 245, 194 P.2d 444, 451, in which case there is cited with approval the following quotation from Moe v. Gier, 116 Cal.App. 403, 2 P.2d 852:
'* * * To create an equitable servitude in the grant of lands in a large area, it is essential that there must be a general scheme of restrictions sufficiently uniform in character to indicate unmistakably a designated and adopted plan throughout common to all purchasers of lots. The restrictions must not only appear in one deed, but in all deeds * * *. In other words, the restrictions must be for the mutual benefit of all parcel owners and each lot imposed with a servitude for the benefit of each and every other lot.' (Emphasis supplied).
Thereafter, citing the case of Scull v. Eilenberg, 94 N.J.Eq. 759, 121 A. 788, the Court in the O'Malley case continued:
'A neighborhood scheme of restrictions to be effective and enforceable must have certain characteristics. It must be universal; that is, the restrictions must apply to all lots of like character brought within the scheme. Unless it be universal it cannot be reciprocal. If it be not reciprocal, then it must as a neighborhood scheme fall, for the theory which sustains a scheme or plan of this character is that the restrictions are a benefit to all. The consideration to each lot owner for the imposition of the restriction upon his lot is that the same restrictions are imposed upon the other lots similarly situated. If the restrictions upon all lots similarly located are not alike, or some lots are not subject to the restrictions while others are, then a burden would be carried by some owners without a corresponding benefit. 'The burden follows the benefit,' * * *. When there is no benefit there should be no burden. If the benefit be destroyed the burden should end.' (Emphasis supplied).
The Court is of the opinion that the plaintiffs cannot enforce the covenant in the deed of June 30, 1908 relating to the sale of liquor against the defendant Pearlman for the reasons enumerated in the opinions quoted above. The evidence before the Court establishes, as previously stated, a checkerboard realty pattern in which certain lots are burdened with covenants which are not applicable to adjoining lots. Thus, in certain of the squares, the covenants apply only to what it almost alternating lots. The covenant, then, lacks universality and is not reciprocal. It would, consequently be unfair to burden the excluded lots with the consequences of the burdens of the included lots, and the Court accordingly, finds for the defendant.
Counsel will submit appropriate order.
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