Beaver Lake Ass'n v. Sorensen, 86-1055

• Decision Date: 03 February 1989
• Docket Number: No. 86-1055,86-1055
• Citation: 231 Neb. 75,434 N.W.2d 703
• Court: Nebraska Supreme Court
• Parties: BEAVER LAKE ASSOCIATION, a Nebraska Nonprofit Corporation, Appellee, v. Michael H. SORENSEN and Cynthia A. Sorensen, Appellants.

Page 703

434 N.W.2d 703

231 Neb. 75

BEAVER LAKE ASSOCIATION, a Nebraska Nonprofit Corporation, Appellee, v. Michael H. SORENSEN and Cynthia A. Sorensen, Appellants.

No. 86-1055.

Supreme Court of Nebraska.

Feb. 3, 1989.

Syllabus by the Court

1. Equity: Appeal and Error. In an appeal of an action in equity, the Supreme Court tries factual issues de novo on the record, subject to the rule that when credible evidence is in conflict on a material issue of fact, the court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than the other.

2. Laches. The defense of laches is not a favored one, and it will be sustained only if the litigant has been guilty of inexcusable neglect in enforcing a right, to the prejudice of his adversary.

3. Restrictive Covenants: Estoppel: Waiver. Building restrictions may be released, waived, or abandoned, or the right to enforce them may be lost by estoppel.

4. Appeal and Error. An issue not presented to or passed upon by the trial court is not an appropriate issue for consideration on appeal.

5. Restrictive Covenants: Injunction. A mandatory injunction is an appropriate remedy for a breach of a restrictive covenant.

Jeffrey D'Agosta and Larry A. Duff, Omaha, for appellants.

E. Michael Slattery, of Case, Reinsch & Slattery, P.C., Plattsmouth, for appellee.

HASTINGS, C.J., CAPORALE, and GRANT, JJ., and MORAN and BROWER, District Judges.

MORAN, District Judge.

Michael H. and Cynthia A. Sorensen, defendants, appeal from an order of the district court for Cass County issuing an injunction in favor of Beaver Lake Association (Beaver Lake), plaintiff, and requiring the Sorensens to comply with the covenants and restrictions on real property in the Beaver Lake Subdivision of Cass County, Nebraska. We affirm.

In an appeal of an action in equity, the Supreme Court tries factual issues de novo on the record, subject to the rule that when credible evidence is in conflict on a material issue of fact, the court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than the other. Obermeier v. Bennett, 230 Neb. 184, 430 N.W.2d 524 (1988).

The covenants and restrictions pertaining to the Beaver Lake Subdivision were recorded in the office of the Cass County register of deeds. These restrictions were upheld by this court in How v. Baker, 223 Neb. 100, 388 N.W.2d 462 (1986). The restrictions involved in this appeal require property owners in the subdivision to submit all building plans and materials for approval and to obtain written permission from the board of directors for building construction within 50 feet of the normal waterline as shown on the plats of the Beaver Lake Subdivision. The architectural committee, appointed by the Beaver Lake board of directors, has authority to approve or disapprove of building plans submitted by property owners.

The Beaver Lake Subdivision is also subject to the Cass County zoning rules and regulations.

The Sorensens owned two adjoining lots in the subdivision. Michael read the covenants and restrictions at the time the couple purchased the first lot. As required by Beaver Lake, the Sorensens obtained a building permit in 1979, prior to constructing a boathouse on their lakefront lot. The plans showed a wooden structure, referred to as a "deck" at trial, adjoining the boathouse on two sides. The deck was raised off the ground and supported by wooden posts driven into the ground. Construction was completed in 1980. Sometime in 1983 or 1984, the Sorensens constructed a small storage shed on the adjoining lot but did not obtain a permit for the construction.

In the spring of 1985, one corner of the deck heaved out of the ground due to frost. Michael began repairing the deck during the first week of March. In the process, he reset the wooden posts, extending the width of the deck by 18 inches to 2 feet beyond the width shown in the plans submitted to Beaver Lake in 1979. He also "put a shade top on top of it," constructing what Beaver Lake representatives referred to as a "gazebo." The construction was completed around the end of May or the beginning of June 1985. Michael did not submit plans to or obtain permission from the architectural committee before beginning this project.

On May 9, 1985, William Nelson, the chairman of Beaver Lake's architectural committee, wrote a letter to Michael concerning the construction he was undertaking on the deck. The letter also noted the existence of the shed on the adjacent lot. The letter requested that Michael comply with the building restrictions by submitting to the architectural committee plans for the deck construction and plans or pictures of the storage shed, or bringing the requested material to the committee's meeting on June 5, 1985.

Michael did not submit the materials requested in the letter, nor did he attend the June 5 meeting. At trial, Michael stated he did not comply with the Beaver Lake building restrictions on the deck structure...