Appeal from the Circuit Court of Baltimore City; Sodaro, J.
Brune, C. J., and Henderson, Hammond, Prescott and Marbury, JJ. Hammond, J., delivered the opinion of the Court.
The chancellor, at the suit of a neighborhood association, enjoined Dr. Grubb, the appellant, from using the basement of his home, 3607 Greenway, Baltimore, as an office for the practice of medicine, except for such occasional use as might be incidental or supplemental to a regular office elsewhere, having found that the use enjoined had violated a restrictive covenant applicable to the property.
Dr. Grubb contends that the restrictive covenant does not bar his using his home as an office; that, if the covenant would otherwise apply, the Guilford Association, Inc., the appellee (a party to the "Deed and Agreement" which established the covenant), waived the enforcement of the restrictive covenant as to use of the property for a doctor's office; that there has been such a change in the neighborhood as to vitiate the covenant and require equity to refuse enforcement of it; and that injunctive relief should have been denied because of the hardship it imposed on him.
The restrictive covenant dated from 1913, when lots in Guilford, a planned and supervised residential area of Baltimore, were first laid out. It was renewed in 1949 (in the manner provided for in the 1913 "Deed and Agreement") and concededly is in effect. It provides that the land shall be used for private residential purposes only and that no building of any kind, except private dwelling houses designed for occupation by a single family and private accessory garages shall be erected or maintained thereon, and that any waiver thereof must be in writing.
The testimony showed that because of illness and domestic difficulties, Dr. Grubb was in financial straits, felt the need of a combined residence and office, and found the Greenway house suitable and desirable. He converted the basement into a doctor's office, consisting of a hall, a waiting room, an isolation room and an office. The office was equipped with a small refrigerator, syringes and customary medical implements and an electric sterilizer. He employs a receptionist-secretary, who works from nine to five. Dr. Grubb sees, by appointment, an average of eight patients on each of four mornings a week, on which his office hours are from 9:30 A. M. to 1:00 P. M., as a rule, and sometimes sees patients on Saturday morning and Wednesday afternoon. On some days he sees as many as fifteen patients. On the regular and yellow pages of the telephone book, Dr. Grubb's office is listed as 3607 Greenway. He occasionally gives injections to patients at his former regular office on 33rd Street, and he pays for the privilege of doing so.
We think the use of the Greenway house as the regular and main office of an actively practicing doctor violates the covenant restricting its use to residential purposes. The tests were laid down in Osborne v. Talbot, 197 Md. 105, 110-111, and Wells v. Osborne, 204 Md. 375, 379-380, both of which dealt with the use that Dr. Osborne, a chiropractor, made of a residence in Hagerstown. In the first case a covenant for residential use only was upheld but the injunction appealed from was held too broad because it "in effect refused to recognize any distinction between practice of a profession wholly at or from one's residence and 'incidental' practice to a limited extent in special circumstances * * *." At the time the second case was decided, Dr. Osborne had begun to practice actively and exclusively at his residence, and this Court said:
"While there is evidence that the practice is not as large as at the Broadway office, and that office hours are not as long, it cannot be described as incidental in any sense. It is the primary and exclusive use to which his training and talents are applied. Nor is it incidental in the sense of occasional, as in the case of a retired physician accepting calls from a few patients, or an active practitioner acting out of usual office hours in urgent or emergency cases. Although a chiropractor is not a physician, there is a close analogy, as noted in our previous decision.
We suggest that the decree should be modified to enjoin the defendant from the regular use of the premises for the practice of his profession, except as incidental or supplemental to an office elsewhere, or occasionally or in emergencies. His present activities must be discontinued."
We find the considerations that led to the conclusions in Wells v. Osborne pertinent here, and ...