Albright v. Fish
Decision Date | 11 September 1978 |
Docket Number | No. 36-78,36-78 |
Citation | 136 Vt. 387,394 A.2d 1117 |
Parties | James D. and Edna I. ALBRIGHT v. John A. and Cheryl FISH, William and Marion C. Miller, Ernest Paul and Marlene Sachs, and Peter R. and Mary Miles Teachout. |
Court | Vermont Supreme Court |
Norris H. Hoyt, Jr., Norwich, and Peter R. Teachout, South Royalton, for cross-plaintiffs, Sachs and Teachout.
Garfield H. Miller of Black & Plante, White River Junction, for cross-defendants, Miller.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This cause centers around a series of transactions made concerning the Robinson Farm in Hartford, Vermont. Each of the parties now owns or once owned a part of this property, and the suit was commenced because of an alleged breach of a restrictive covenant that bound one of the parcels.
In November, 1971, the common grantor, Reilly and Little, purchased the Robinson Farm. At that time, the farm consisted of approximately 72 acres of land lying north of Jericho Road and two separate, isolated parcels of approximately six acres each, lying south of Jericho Road. One of the six acre parcels was sold by Reilly and Little to the Fisks in January, 1972; the second was sold to the Hansens in June, 1972. Neither deed contained the restrictive covenant here at issue.
The tract northerly of Jericho Road was surveyed and subdivided into three parcels for sale. In February, 1972, Reilly and Little conveyed a parcel, described in the deed as containing 20 acres, more or less, to defendants Millers. This parcel subsequently was determined to contain 18.9 acres. In May, 1972, Reilly and Little sold the remaining two parcels of 15 acres and 38 acres to the Wells. The deeds to the Millers and to the Wells contained the following covenant here at issue: "The premises herein conveyed shall not be subdivided into lots of less than 10 acres." Each deed further provided that the covenant "shall run with the land and be binding on the Grantees, their heirs and assigns for a period of 50 years from the date of the within deed."
At some point, probably in early 1973, the Millers decided to subdivide their parcel into two lots for sale, one of 8.9 acres and the other of 10 acres. They obtained a quitclaim deed from their original grantors dated June 8, 1973, purporting to release the Millers from the requirements of the 10 acre minimum lot restriction. Thereafter, the Millers conveyed the 10 acre parcel to defendants Fishes in September, 1973. The quitclaim deed was then recorded on October 24, 1973, indexed under Reilly and Little as grantors and the Millers as grantees.
In November, 1974, the Wells conveyed their 15 acre parcel to defendants Sachs. Then, the Millers sold the 8.9 acre parcel to plaintiffs Albrights in January, 1975. Finally, the Wells conveyed the 38 acre parcel to defendants Teachouts in July, 1975. Except as noted, each of the transfers was by warranty deed. While the Teachouts' deed contained the restrictive covenant here at issue, the Sachs' deed did not.
In August, 1975, the Sachs and the Teachouts notified the Albrights of their position that the conveyance of the 8.9 acre lot violated the restrictive covenant and that any construction would be at the Albrights' own risk. In December, 1975, the Albrights filed suit in the Windsor Superior Court requesting in the alternative either that the Millers be compelled to reacquire the land and compensate the Albrights for expenses incurred in relation to it, or that declaratory relief be given that the Albrights could construct a dwelling on the disputed property plus monetary damages against the Sachs and the Teachouts to compensate for the costs and expenses caused by the delay.
In June, 1976, the Sachs and the Teachouts entered into a settlement agreement with the Albrights. Pursuant to the settlement, the Albrights conveyed undivided one-half interests in the 8.9 acre lot to the Sachs and to the Teachouts. Also, the Albrights assigned to the Sachs and the Teachouts all claims they might have with regard to the 8.9 acre parcel. The settlement further provided that the intent of the parties was that other claims of the parties to the agreement would not be affected by the settlement. Subsequently, the Albrights' complaint was dismissed, and the Sachs and the Teachouts (hereinafter the cross-plaintiffs) brought a cross-claim against the Millers (hereinafter the cross-defendants). In the cross-claim, the cross-plaintiffs claimed a breach of the restrictive covenant allegedly running with the land in their favor and sought both compensatory and exemplary damages. Also, the cross-plaintiffs alternatively urged the assigned rights of the Albrights seeking recision of the Miller to Albright conveyance and all injunctive relief and damages to which the Albrights would have been entitled.
At a conference with the trial court in June, 1977, the parties and the court agreed that, since the issue of liability was one of law, not fact, the liability issue would be submitted to the court on stipulated facts and written briefs. Also, it was agreed that the trial would be bifurcated, with the question of damages re-reserved to a subsequent hearing should liability be found.
In January, 1978, the trial court rendered judgment for the cross-defendants. The court concluded that, although the quitclaim release from Reilly and Little to the cross-defendants was not in the chain of title of the cross-plaintiffs, the quitclaim release and the absence of any reference to the restrictive covenant in the deed from the Wells to the Sachs "would put any title examiner on notice that there might be something unusual involved in the subdivision." Secondly, the court found as a matter of law that there was no common scheme or plan of development creating reciprocal rights among all the landowners because two of the four parcels conveyed by the common grantor contained no covenants and were less than 10 acres. The court concluded that absent such a common plan the restrictive covenant was not strictly enforceable. The court rejected the cross-plaintiffs alternate claim for damages on the grounds it was "unreasonable and unconscionable under the circumstances."
On appeal, the cross-plaintiffs have asked for reversal on the ground that the cross-defendants breached a covenant running in favor of the 15 acre and the 38 acre parcels held respectively by the cross-plaintiffs and for a hearing on the issue of damages caused by that breach. The cross-plaintiffs have not asserted their claim based on the assigned rights gained from the Albrights here, and thus we need not decide the correctness of the trial court's disposition of that claim. The issue for decision is whether the cross-plaintiffs may recover damages in their own right on the facts as stipulated by the parties. Although the cross-defendants are the original covenantors to the restrictive covenant at issue, the cross-plaintiffs are successors in title to the original covenantees. Thus, for the cross-plaintiffs to have standing to sue for breach of the covenant, the benefit of the covenant must run in favor of the 15 acre and the 38 acre parcels of land owned by the cross-plaintiffs. For the cross-plaintiffs to recover damages, the covenant must "run at law."
For a restrictive covenant to run at law, four elements are necessary. First, the covenant must be in writing. Secondly, the parties must intend that the covenant run with the land....
To continue reading
Request your trial-
Bright v. Lake Linganore Ass'n, Inc.
...709 S.W.2d 1 (Tex.App. 1 Dist.1985); Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618, 627 (Utah 1989); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120-21 (1978). In the case sub judice, vertical privity, at the least, is clearly The charges imposed by the covenants require the......
-
Daniels v. Elks Club of Hartford
...To begin with, merger requires identity between the holder of the equitable interest and the holder of legal title. See Albright v. Fish, 136 Vt. 387, 395, 394 A.2d 1117, 1121 (1978) (“The doctrine of merger operates when the same person becomes owner of both the benefited and the burdened ......
-
Stern v. Metro. Water Dist. of Salt Lake & Sandy, 20100339.
...a mobile home because the covenant was “intimately connected” with the land (internal quotation marks omitted)); Albright v. Fish, 136 Vt. 387, 394 A.2d 1117, 1120 (1978) (“Some promises are so intimately connected with the land as to require the conclusion that the necessary intention for ......
-
Flying Diamond Oil Corp. v. Newton Sheep Co.
...or the use of the land."). See also 165 Broadway Bldg., Inc.; Neponsit, 278 N.Y. at 257-58, 15 N.E.2d at 796; Albright v. Fish, 136 Vt. 387, 394, 394 A.2d 1117, 1121 (1978). First Western Fidelity v. Gibbons and Reed Co., 27 Utah 2d 1, 492 P.2d 132 (1971), appears to be at odds with the for......