Barber v. Dixon

• Court: North Carolina Court of Appeals
• Writing for the Court: ARNOLD; Morris; VAUGHN, C.J., and HEDRICK
• Citation: Barber v. Dixon, 302 S.E.2d 915, 62 N.C.App. 455 (N.C. App. 1983)
• Decision Date: 07 June 1983
• Docket Number: No. 824DC554,824DC554
• Parties: Ronald Wayne BARBER, and wife, Mona Lisa Barber, Gilbert R. Hershey and wife, Frances O. Hershey, James L. Gentry, Sr., and wife, Beulah Ann Gentry v. Herman F. DIXON and wife, Matilda P. Dixon.

Page 915

302 S.E.2d 915

62 N.C.App. 455

Ronald Wayne BARBER, and wife, Mona Lisa Barber, Gilbert R Hershey and wife, Frances O. Hershey, James L Gentry, Sr., and wife, Beulah Ann Gentry v. Herman F. DIXON and wife, Matilda P. Dixon.

No. 824DC554.

Court of Appeals of North Carolina.

June 7, 1983.

Warlick, Milsted, Dotson & Carter by Marshall F. Dotson, Jr., Jacksonville, for plaintiff-appellee.

Thomasine E. Moore and Bowen C. Tatum, Jr., Jacksonville, for defendants-appellants.

ARNOLD, Judge.

We first note that injunction is a proper equitable remedy to enforce a restrictive covenant when the plaintiffs show that their remedy at law is inadequate and that they will suffer irreparable damage if the violation is allowed to continue. See Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388 (1954); Franzle v. Waters, 18 N.C.App. 371, 197 S.E.2d 15 (1973). Because the plaintiffs here have met this burden, the judgment is affirmed.

North Carolina follows the rule of strict construction when interpreting restrictive covenants. That is, any ambiguities will be resolved in favor of unrestricted use. But this rule must not be applied to defeat the plain and obvious purposes of the restriction. Long v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 239 (1967). See also, J. Webster, Real Estate Law in North Carolina § 388 (Hetrick rev. 1981). As owners of lots in the subdivision, the plaintiffs are proper parties to enforce the restrictive covenants. Stegall v. Housing Authority, 278 N.C. 95, 102, 178 S.E.2d 824, 829 (1971).

This dispute turns on if the defendants' structure violates clause six's prohibition of temporary structures and house trailers. Neither of these terms are defined in the restrictive covenants. In such cases, we follow the intentions of the parties. "[E]ach part of the covenant must be given effect according to the natural meaning of the words...." Hobby & Son, Inc. v. Family Homes, 302 N.C. 64, 71, 274 S.E.2d 174, 179 (1981).

With these general principles in mind, we turn to cases that have considered similar restrictions. In Strickland v. Overman, 11 N.C.App. 427, 181 S.E.2d 136 (1971), the restriction stated: "No trailer, tents or temporary structures shall be erected or allowed on any lot...." The court held that the defendants' "prefabricated modular unit" violated the covenant.

The restriction in Van Poole v. Messer, 19 N.C.App. 70, 198 S.E.2d 106 (1973), stated: "No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence either temporarily or permanently." The court held that there was no material issue of genuine fact that "a modern mobile home" is a "trailer" within the meaning of that covenant.

Judge Morris (later Chief Judge) continued:

That the term "trailer" includes a "mobile home" within its meaning is the accepted rule in every authority we have found dealing with that issue. (Citations omitted). In Annot., 96 A.L.R.2d 232 (1964), at page 234, it is stated that "[t]he term 'trailer' is understood in its usual meaning regardless of whether it is referred to or described as house trailer, mobile home, trailer coach, or some such term."

19 N.C.App. at 72, 198 S.E.2d at 107.

We also note City of Asheboro v. Auman, 26 N.C.App. 87, 214 S.E.2d 621, cert. denied, 288 N.C. 239, 217 S.E.2d 663 (1975), where the court upheld a permanent injunction prohibiting the defendants from allowing a mobile home to remain in an area where it was prohibited by an ordinance. According to that case, "the mere removal of the wheels, tongue and the erection of a foundation ... did not change the nature of the offending use of the property." 26 N.C.App. at 88, 214 S.E.2d at 621. The evidence here showed that the two units that comprise the defendants' structure were transported by wheels, tongues and axles that were bolted on at the place of manufacture and removed about two days after the units were located on the lot.

The expressed intent of these covenants also supports our holding that the defendants' structure is a violation. An introductory paragraph states that one purpose of the covenants is "to prevent uses which might tend to diminish the value of said property and any part thereof...." As was found in the judgment, the defendants' structure "materially impairs the uniform scheme of development of said subdivision and threatens to impair the marketability of the property of the plaintiffs...."

Thus, there was sufficient evidence to support the trial judge's findings that the defendants' structure was a trailer and a temporary structure within the meaning of the restrictive covenants.

The defendants raise waiver as a possible defense. The evidence shows that one of the plaintiffs has a storage shed on his land that was there when he bought his lot and that another owner in the subdivision has a building on his lot in which he stored his boat. Because the plaintiffs have not enforced the covenants against those two owners, the defendants contend that the right to enforce the covenants has been waived. We disagree.

Whether acquiescence in violations of restrictive covenants is a waiver by owners in a subdivision of the right to enforce the restrictions was addressed in Tull v. Doctors Bldg., Inc., 255 N.C. 23, 120 S.E.2d 817 (1961). Restrictive covenants will be given full effect unless changed conditions within the covenanted area are "so radical as practically to destroy the essential objects and purposes" of the scheme of development. 255 N.C. at 39, 120 S.E.2d at 828. See also, Webster, supra, at § 389. The two examples cited by ...