enforcing a restrictive covenant against condemning authority would defeat the purpose of eminent domain, but use of property — whether purchased or condemned — violating a restrictive covenant, constitutes taking and entitles an owner to compensation
How later courts described this case
- enforcing a restrictive covenant against condemning authority would defeat the purpose of eminent domain, but use of property — whether purchased or condemned — violating a restrictive covenant, constitutes taking and entitles an owner to compensation
- "The Board's power to purchase property . . . is tantamount to the power of eminent domain."
- damages constitute appropriate remedy for taking of negative easements created by language of covenant
Written by the judges who cited it.
The opinion
Judge Clark
concurring:
The power of eminent domain is founded on the law of necessity and is not to be exercised arbitrarily. In my opinion if the pleadings had properly raised the issue, the plaintiffs would have the right to a judicial determination of the legal authority and necessity for the taking of their vested interests and the right to an injunction pending this determination. But the complaint alleges that the intended use of the lots may become “an annoyance or nuisance to the neighborhood” and prays that defendant be restrained from violating the restrictive *528 covenants. Under these circumstances their remedy is compensation for the taking and not restraint of the defendant in the intended use of the property.