Baltes v. Hodges, 43063
| Decision Date | 23 January 1981 |
| Docket Number | No. 43063,43063 |
| Citation | 301 N.W.2d 92,207 Neb. 740 |
| Parties | Laurence BALTES and Lydia Baltes, husband and wife, Appellants, v. Warren C. HODGES et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Restrictive Covenants: Injunctive Relief. Broadly speaking, the enforcement of building restrictions is governed by equitable principles, and will not be decreed if, under the facts of the particular case, it would be inequitable and unjust, or not in furtherance of public interest. Whether injunctive relied will be granted to restrain the violation of such restrictions is a matter within the sound discretion of the trial court, to be determined in the light of all the facts and circumstances.
2. Restrictive Covenants. A restrictive covenant is to be construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it; the location and character of the entire tract of land; the purpose of the restriction; whether it was for the sole benefit of the grantor, or for the benefit of the grantee and subsequent purchasers; and whether it was in pursuance of a general building plan for the development of the property.
3. Contracts: Intent. An unambiguous contract is not subject to interpretation or construction, and the intent of the parties must be determined from its contents. A contract will be construed most strongly against the party preparing it when there is a question as to its meaning.
Wright & Simmons, Scottsbluff, for appellants.
Raymond, Olsen & Coll, P. C., Scottsbluff, for appellees.
Heard before KRIVOSHA, C. J., McCOWN, and HASTINGS, JJ., and COLWELL and CANIGLIA, District Judges.
Plaintiffs appeal from a judgment denying a mandatory injunction to enforce restrictive covenants they imposed in their sale of commercial lots to defendants. Plaintiffs claim defendants constructed parking areas at excessive elevations. We affirm.
In 1959, Laurence and Lydia Baltes, plaintiffs, platted a 48-acre tract of land on the edge of Scottsbluff, Nebraska; piecemeal development followed. They leased an area (now Lot 1, Block 5, Baltes Second Addition) to Big John's Bar-B-Q Pit on which the lessee constructed a building and paved parking lot.
On October 5, 1977, plaintiffs granted an option to defendants Warren C. Hodges, Harry E. Palmer, Robert R. Kanard, and Francis Ferguson to buy a small tract of land, later replatted by plaintiffs, described as Lots 2, 3, 4, and 5, Baltes Second Addition, Scottsbluff, Nebraska. The five lots in Block 5 run north and south, fronting 27th Street on the south, and are numbered from east to west as Lots 1 through 5. Lots 2, 3, 4, and 5 are smaller than Lot 1, each being 50 feet wide east and west and 300 feet long north and south. Lots 2, 3, 4, and 5 at the time of the option were in their natural state, not level. The water drained naturally from west to east and generally in a southeasterly direction. Twenty-seventh Street on the south drained from west to east.
Plaintiffs had their attorney prepare an instrument entitled "Restrictive and Protective Covenants to Baltes Second Addition to the City of Scottsbluff, Scotts Bluff County, Nebraska," which generally restricted and regulated the lots in that addition as commercial lots; prohibited subdividing; restricted long-term parking; restricted location of buildings to setback lines; required building plans submitted to plaintiffs, including a "site plan"; limited advertising signs; prohibited noxious activities and the maintaining of livestock; and regulated garbage and trash. The instrument also provided that the covenants are to run with the land until October 1, 1990, and thereafter automatically extended. Particularly important to this action is a part of paragraph 5: (Emphasis supplied.) A part of paragraph 7 provides: This instrument was recorded in the office of the county Register of Deeds.
On November 6, 1977, the original parties executed a "Modification of Option," which further defined the terms of the original option and, particularly, the following: "Buyers consent to the Sellers adopting Restrictive and Protective Covenants, a copy of which is attached hereto to be applicable to lands described on the condition that the land immediately to the west thereof, when platted and annexed to the City of Scottsbluff by Sellers, have the same Restrictive Covenants.
"It is further agreed that Buyers shall bring the areas described, when a parking area is created and paved, to the same elevation as the parking lot on Lot One (1), Block Five (5), as it now exists." (Emphasis supplied.)
The option was exercised on November 17, 1977. For convenience two deeds were delivered: (1) Plaintiffs conveyed Lots 2 and 3, Block 5, Baltes Second Addition, to Donuts West, a partnership consisting of Warren C. Hodges, Harry E. Palmer, and Francis Ferguson; and (2) plaintiffs conveyed Lots 4 and 5, Block 5, Baltes Second Addition, to Wyoming Fish and Chips, a partnership consisting of Robert R. Kanard, Harry E. Palmer, and Warren C. Hodges. Both conveyances were subject to easements, rights-of-way, and restrictions of record. Work on all lots began; construction on Lots 4 and 5 was completed, including leveling, dirt fill, a building for a fast-food business, and a hard-surface parking area. Work on Lots 2 and 3 was limited to leveling and dirt fill. At the boundaries between Lots 1 and 2 and between Lots 3 and 4, the dirt level of Lots 2 and 3 was 3 inches lower, pending construction of the parking area.
All the lots were surveyed by defendants and elevation marks established along all the boundary lines and at midpoints. The midpoint...
To continue reading
Request your trial
-
Boyles v. Hausmann
...according to its plain language, and the covenant shall not be subject to rules of interpretation or construction. Baltes v. Hodges, 207 Neb. 740, 301 N.W.2d 92 (1981); Lakeland Prop. Owners Ass'n v. Larson, 121 Ill.App.3d 805, 77 Ill.Dec. 68, 459 N.E.2d 1164 (1984). See, also, Knudtson, su......
-
Nebraska Public Power Dist. v. Austin Power, Inc., s. 84-2420
...Nebraska Power prepared the contract, and any question as to its meaning will be construed against it. See, e.g., Baltes v. Hodges, 207 Neb. 740, 745, 301 N.W.2d 92, 96 (1981); Timmerman Bros., Inc. v. Quigley, 198 Neb. 129, 132, 251 N.W.2d 877, 879 (1977). Hence, we find that the district ......
-
Craig v. Hastings State Bank
...the language is embodied in a preprinted form. See, DaLee Realty, Inc. v. Kuhl, 209 Neb. 6, 305 N.W.2d 891 (1981); Baltes v. Hodges, 207 Neb. 740, 301 N.W.2d 92 (1981). The policy and rationale for construction adverse to a drafter are expressed in comment a. to Restatement (Second) of Cont......
-
T.V. Transmission, Inc. v. City of Lincoln
...Bros., 215 Neb. 398, 338 N.W.2d 774 (1983); Meyers v. Frohm Holdings, Inc., 211 Neb. 329, 318 N.W.2d 716 (1982); Baltes v. Hodges, 207 Neb. 740, 301 N.W.2d 92 (1981); Rullman v. LaFrance, Walker, Jackley & Saville, 206 Neb. 180, 292 N.W.2d 19 A literal reading of the contract language estab......