¶1The following opinion was filed April 30, 1907:
¶2(dissenting). I think tbe judgment in this case should be reversed, and will briefly state my reasons for my conclusion: John Johnston, Jr., originally owned tbe entire properly, and in October, 1892, sold 13.40 acres thereof to Weiss, and at tbe same time Johnston and Weiss made a written agreement that tbe character of tbe whole property as first-class residence property should be preserved by them and by future purchasers and that no |>art thereof should be at any time occupied, used, or sold by them or by their heirs, personal representatives, or assigns for club purposes. This agreement was duly recorded and was. entitled to record, and could doubtless be enforced by either party or bis privies by *674appropriate action against the other party or his privies. This, however, is not ¡such an action. The parties here, both plaintiffs and defendants, are subsequent purchasers of parcels of the part reserved by Johnston, and they all claim under mesne conveyances from Johnston which contain no restrio tions on the use. None of them are purchasers under Weiss or are in privity with Weiss, hence it is clear that they have succeeded to none of Weiss’s rights under his contract with Johnston. The right of one purchaser from Johnston to compel a restricted use of a part of the property by another purchaser must therefore depend, not upon contract or covenant, but upon the application of some equity arising out of the facts surrounding their purchases. There is a well-established equitable principle that when the owner of a tract of land adopts and makes public a general scheme for the improvement of the tract and divides it into lots or'parcels, and conveys the lots with uniform restrictions on their use, these restrictions are held to be for the benefit of all the purchasers, and may be'enforced by one purchaser against another. 1 Jones, Real Prop. in Conv. § 771. In such cases the question whether the restriction creates a right which inures to the benefit of all purchasers is a question of the intention of the grantor, to be gathered from the terms of the various grants or from the surrounding circumstances, or both; and, where the intention is to be gathered from circumstances only, the circumstances relied on must be such as to show such intention by necessary and unavoidable implication. In the present case there is absolutely no evidence to show that Mr. Johnston had any intention to subdivide his reserved land when he made the contract with Weiss. The contract itself contains nothing more than would ordinarily be inserted in such an agreement between two adjoining owners of lands who had no intention to subdivide or improve, but simply intended each to bind himself and his grantees to certain restrictions in favor of the other party and his grantees. Not only this, hut *675it further appears that when some years later Mr. Johnston began to subdivide his oto. property, he inserted no clause in any of the deeds restricting the use of the property, nor was there a word said concerning such a restriction between Johnston and his grantees. If he had any such intention when he ■dealt with "Weiss there is absolutely^ nothing to show that he had any such intention when, at a later period, he subdivided his remaining land. On the contrary, the implication seems to me clear that he had no such intention from the total failure to mention the subject in any way in his deeds to the plaintiffs and defendants. The plaintiffs are here with absolutely no contract rights against the defendants, and they have utterly failed to show that, when their common grantor subdivided and deeded his land, he had any intention to impose general restrictions on its use, and much less that he made any such intention public by. word or act.
¶3The law does not favor perpetual restrictions upon the alienation or lawful use of lands, and in my judgment no case was made here calling upon a court of equity to create restrictions.
¶4A motion for a rehearing was' denied May 21, 1907.