Ohio Court of Appeals, 1928

Caldwell v. Warren

Caldwell v. Warren
Ohio Court of Appeals · Decided November 12, 1928 · Levine, Sullivan, Vickery
6 Ohio Law. Abs. 738; 1928 Ohio Misc. LEXIS 824

Caldwell v. Warren

Opinion of the Court

VICKERY, J.

Now the testimony of the builder is important. His testimony is clear and unequivocal that the purpose was to build an enclosed room. True, he says .the windows could be removed. Of course, the windows could be removed from any house, but from the looks of the windows that were already in and that were to be put here, they were French windows and they were hung on hinges so they would open inward, and from the structure of the window frames it does not seem possible that these were intended to be simply temporary affairs, and the room thus enclosed would project the house out eight feet beyond the front wall of the house and the roof covering this enclosed porch would extend out farther than the original roof.

We think the manner in which they sought to do this, shows plainly and conclusively that it was designed by the defendants to violate the building restrictions and it was being done so gradually from time to time that it would lull the suspicions of the neighbor until it was all up. The mere fact that they did not intend to plaster it on the inside, although from the testimony of the builder that is uncertain, would be immaterial. On the outside it was a complete structure and it was an enclosed structure and these French windows were as much a part of the house as French windows are in any house and, of course, they could be removed, but the window frames would still be there and it would be an enclosed porch with the window sash taken out.

From the whole record we think there is an intended violation of the building restrictions and the plaintiff is entitled to the relief that he seeks and the injunction will be allowed and made perpetual and a decree may be drawn in favor of the plaintiff to carry out the purpose of this opinion.

(Sullivan, PJ., concurs. Levine, J., not participating.)

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