Mitchell v. Denson
Mitchell v. Denson
Opinion of the Court
There is no ambiguity in the restrictions, which forbid the erection of more than one dwelling
The defendant concedes the existence of the recorded restrictions, his actual knowledge thereof, and that his land is subject thereto, but contends that he has not and is not threatening to violate the same. This position of the defendant renders inapplicable the rule stated in Jordan v. Orr, 209 Ga. 161 (1a) (71 S. E. 2d 206), that generally the owner of the fee is entitled to use his property for any lawful purpose, and one claiming a restriction upon such use must clearly establish such restriction. Neither would the ruling in David v. Bowen, 191 Ga. 467, 469 (12 S. E. 2d 873), that limitations upon such use by implication must be strictly construed, be applicable. The intention of the parties as expressed in the restrictions must be given effect. Randall v. Atlanta Advertising Service, 159 Ga. 217 (125 S. E. 462). That intention is plainly stated that only one residence shall be placed upon a 60-foot lot, and can be effectuated only by requiring for each house a minimum of a 60-foot lot. The undisputed evidence shows a violation of the restriction, and, accordingly, the court erred in denying the injunction.
Judgment reversed.
Reference
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- MITCHELL v. DENSON
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