Alloway v. Moyer

• Decision Date: 24 June 1976
• Parties: Robert L. ALLOWAY and Mary Ruth Alloway, husband and wife, Respondents, v. Alva B. MOYER, Appellant.
• Court: Oregon Supreme Court

Page 1379

550 P.2d 1379

275 Or. 397

Robert L. ALLOWAY and Mary Ruth Alloway, husband and wife, Respondents, v. Alva B. MOYER, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted May 5, 1976.

Decided June 24, 1976.

R. Conrad Schultz, of Hill & Schultz, P.C., Eugene, argued the cause and filed briefs for appellant.

J. Fred Brandenfels, of Brandenfels & Klarr, Eugene, argued the cause and filed a brief for respondents.

Before O'CONNELL, C.J., ^* and HOLMAN, TONGUE and BRYSON, JJ.

HOLMAN, Justice.

This is a suit in equity to restrain defendant from building a house on his lot in contravention of a building restriction as to height or, in the alternative, for damages for violation of the restriction. Defendant appeals from a decree for plaintiffs requiring him to remodel his house to comply with the restriction or to pay damages.

Plaintiffs were the original owners of all the property in question. They platted it and subsequently defendant came into ownership of one of the lots. The property was situated on a hillside to the south of the City of Eugene, defendant's lot being immediately below that of plaintiffs'. When plaintiffs learned that defendant intended to build, they warned him of the restriction, which was as follows:

'All building structures on lots 1, 2, 3 and 4 shall be located with respect to topography and finished grade elevation as not to obstruct the view of other residences or prospective building sites in the immediate area. No structure of the A-frame type may be erected on lots 1 through 4, inclusive.'

A number of conferences were held between the parties in which they unsuccessfully attempted to work out their differences concerning the height of the house which defendant was to build. After defendant commenced construction and it appeared to plaintiffs that the house would not, in their opinion, comply with the restriction, they commenced the present proceeding.

Despite the commencement of the suit, defendant continued construction which, at least as to the structure's height, was completed at the time of trial. The trial court entered the following decree:

'1. Defendant shall have three alternatives from which he may choose, towit:

'a. Remove the roof on the present structure at 1990 Graham Street, Eugene, Lane County, Oregon, and replace said roof with a flat roof which is not less than 3 feet 6 inches below the present roof line. If Defendant is able to lower the roof said 3 feet 6 inches there shall be no damages to pay to Plaintiffs. In the event that Defendant is able to lower the roof only 3 feet, Defendant shall pay, in addition, damages in the sum of $1,000 to Plaintiffs.

'b. Remove the present roof structure and replace the roof with a mansard roof that shall be not less than 2 feet 9 inches below the present roof line, using a mansard-type roof. In the event that Defendant should choose this alternative, he shall pay to Plaintiffs damages in the sum of $2,000.

'c. Leave the roof as it now is and pay the Plaintiffs the sum of $10,000 as damages.

'IT IS FURTHER ORDERED AND DECREED that if Defendant chooses to lower the roof as set forth in either alternative 'a' or 'b', and there is for a chimney or other type of venting ordinarily used in constructing a home similar to that existing at 1990 Graham Street, Eugene, Lane County, Oregon, and should said chimney or venting rise above the height indicated in the alternative chosen by the Defendant, Defendant shall be allowed to so construct any such chimney or venting.'

Defendant first contends the trial court erred in overruling his demurrer to plaintiffs' complaint, which was upon the ground that the complaint was so unclear and ambiguous as not to be enforceable, because there was no sure way of determining whether a house of any given height upon the servient estate would violate the restriction. An ambiguous restriction is not void. This court has construed and upheld restrictions which were as equally ambiguous as is the one in question here. See Hanson v. Salishan Properties, Inc., 267 Or. 199, 515 P.2d 1325 (1973) (view preserved to the greatest extent reasonably possible); Donaldson v. White, 261 Or. 314, 493 P.2d 1380 (1972) (height restricted to one and one-half stories).

An ambiguous restriction requires only a reasonable construction which is most favorable to the servient estate. In this case the restriction was ambiguous and subject to construction. By his purchasing the servient property with notice of the restriction, defendant bound himself to comply with a reasonable construction of the restriction most favorable to him, while taking into consideration the circumstances of its formulation, including the topography and the view which was intended to be protected. V Powell on Real Property 155, 673 (Rohan rev 1975) has the following to say:

'Any set of operative facts claimed to constitute a promise respecting the use of land presents a preliminary and basic set of questions in the field of construction. All of the general rules of construction set forth in a prior chapter of this Treatise ( 316--320) are applicable. Thus, an effort is made to gather the intent of the parties from the language used, read in the light of the circumstances of its formulation. Insofar as these promises tend to curtail or to hinder full use of land, the public policy favoring untrammeled land use comes in to urge strict construction wherever ambiguity opens the door for a policy-dictated construction. * * *.' (Footnotes omitted.)

Defendant illustrates what he claim is the basic irrationality of the restriction by arguing that any house upon his lot would obstrict a view of something and could, therefore, conceivably come within the restriction. Such...