Bowers Welding and Hotshot, Inc. v. Bromley

• Decision Date: 10 May 1985
• Docket Number: No. 84-227,84-227
• Citation: 699 P.2d 299
• Parties: BOWERS WELDING AND HOTSHOT, INC., Marvin Bowers and Charlotte Bowers, Appellants (Defendants), v. Michael D. BROMLEY, Emma L. Bromley, Clyde E. Dickerson, Linda H. Dickerson, and Zenda M. Thomas, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 299

699 P.2d 299

BOWERS WELDING AND HOTSHOT, INC., Marvin Bowers and Charlotte Bowers, Appellants (Defendants), v. Michael D. BROMLEY, Emma L. Bromley, Clyde E. Dickerson, Linda H. Dickerson, and Zenda M. Thomas, Appellees (Plaintiffs).

No. 84-227.

Supreme Court of Wyoming.

May 10, 1985.

Clifford J. Neilson, Casper, for appellants.

Gerald R. Mason, Mason & Twitchell, Pinedale, for appellees.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

BROWN, Justice.

The present appeal involves the enforcement of certain restrictive covenants in a subdivision. Appellees, owners of lots in the subdivision, sought to enjoin appellants Marvin and Charlotte Bowers from conducting commercial activities on appellants' lot in violation of certain restrictive covenants, requiring the land in the subdivision be used "for residential purposes only." The district court found generally for the appellees, ordering appellants to cease conducting commercial activities on the property, finding appellants' actions constituted a nuisance, and awarding appellees attorney's fees.

Appellants raise the following issues for our review:

"1. Whether the District Court erred in finding that the Restrictive Covenants recorded May 1, 1973, applied to the Defendants' property.

"2. Whether the activities of the Defendants conducted on their property were sufficiently intentional, unreasonable, unwarranted, and unlawful as to constitute a nuisance as defined by this Honorable Court.

"3. Whether the District Court was justified, based upon the evidence presented, to award attorney fees and costs to the Plaintiffs."

We will affirm the district court's finding that appellants violated the restrictive covenants and that their activities constituted a nuisance, but modify the judgment by deleting attorney's fees.

On March 18, 1983, the appellees, plaintiffs below, filed this action seeking to enjoin appellants, defendants below, from conducting further commercial activities on Lot 14 of the Green River Subdivision. Appellants denied violating any restrictive covenants, alleging the covenants at issue did not apply to their lot since they were omitted from the first set of restrictive covenants filed by the subdivision's developer, Fear Ranches, Inc. Appellants cross-claimed against developer Fear Ranches, but the cross-claim was dismissed upon motion by Fear Ranches.

The evidence presented at trial indicated that appellants were conducting commercial activities upon their land in the subdivision. A large metal building and several large metal tanks were constructed on appellants' property for use in their business. Large oil field trucks were dispatched from the property; drill pipe was loaded, unloaded and stored; and drilling rigs were also stacked and stored. Appellees complained of the noise generated by the truck traffic, as well as the unsightliness of the above activities in the rural residential neighborhood.

After trial on the merits, the district court found for appellees and ordered Lot 14 be brought into conformity with the restrictive covenants, holding:

"3. Lot 14 in the Green River Subdivision is subject to the original covenants and restrictions on file in the office of the Sublette County Clerk and there has been no waiver of those restrictions.

"4. The defendants had actual and constructive notice of the covenants.

"5. The defendants have violated and are continuing to violate the covenants * * *. (The remainder of paragraph 5 is set out infra pertinent to our discussion of nuisance.)

* * *

* * *

"6. The foregoing actions of the defendants are a violation of the covenants in that the covenants require that Lot 14 be used for residential purposes only and all of the above actions are done in furtherance of a commercial business enterprise.

"7. The defendants are now failing and have since 1981 failed to maintain Lot 14 in a neat and orderly manner by depositing upon and using Lot 14 as described in paragraph 5 hereof.

"8. The defendants are maintaining a private nuisance on Lot 14 as that term is defined in the covenants and independently of the covenants.

* * *

* * *

"NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:

"1. The defendants are hereby prohibited and permanently and prospectively enjoined from conducting any further welding, repair or hot shot business from or on Lot 14 * * *.

* * *

* * *

"2. The defendants are hereby mandatorily enjoined and ordered to abate the nuisance, to put Lot 14 in a neat and orderly condition * * *.

* * *

* * *

"3. Lot 14 of Green River Subdivision, Sublette County, Wyoming, is henceforth to be used for residential purposes only and is to be maintained in a neat and orderly fashion.

"4. The 60' X 100' building erected on Lot 14 by the defendants is commercial by its very nature and appearance but the Court does not order it to be removed at this time and will allow the individual defendants a reasonable time to demonstrate that the building can be used in conjunction with their personal residence as an appurtenant structure, but it must be used only by the individual defendants (the corporation has no residential purposes) and it must be used for residential purposes only."

I

In their first issue, appellants raise the question of whether the district court erred in finding that the restrictive covenants recorded May 1, 1973, applied to appellants' property. To determine this issue, examination must be made of the facts and circumstances attendant upon appellants' purchase of the property.

In March of 1973, Fear Ranches, Inc. executed a plat of the Green River Subdivision constituting some 160 acres divided into 14 lots. The plat was recorded on April 4, 1973, and specifically provided "that the subdivision is subject to covenants and restriction of record." ¹ On April 1, 1973, appellant Marvin Bowers paid $500 as a down payment toward the purchase of Lot 14. On May 15, 1973, appellants and Fear Ranches, Inc., made an agreement for warranty deed. This document was recorded on June 22, 1973, and specifically made the sale "SUBJECT TO covenants for governing Green River Subdivisions filed for record in the Office of the County Clerk, Sublette County, Wyoming." (Emphasis in original.)

On April 23, 1973, Fear Ranches, Inc., executed restrictive covenants governing the Green River Subdivision. These covenants specifically stated:

"WHEREAS, the undersigned wishes to place certain restrictions on the tracts in all of said GREEN RIVER SUBDIVISIONS being situated within Sections 20 and 29, Township 29 North, Range 111 West of the 6th Principal Meridian, Sublette County, Wyoming, for the benefit and protection of the undersigned and those purchasing said tracts; and

"WHEREAS, the undersigned desires that this instrument shall define the restrictions upon said tracts and shall be later incorporated by reference in the deeds and contracts to persons purchasing said tracts with said restrictions thereby intended to apply to each tract and to run with the land through subsequent transactions;

"NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS that all tracts in the GREEN RIVER SUBDIVISION, Above described, are subject to the following listed restrictions, to-wit:

"1. Said land shall be used for residential purposes only. Commercial, public or illegal purposes in the use of such lands or residences is hereby barred.

"2. It shall be the duty of lot owners to keep their lots neat and orderly and free from odor producing refuse and the governing committee shall have the power to declare a nuisance if lots are not so kept. If the lot owner does not remove such nuisance upon ten (10) days' notice, then the governing committee shall have the authority to abate said nuisance at the lot owner's expense.

* * *

* * *

"4. Lot Thirteen (13) of the Green River Subdivision is specifically excluded from the commercial provision of Paragraph 1, in that it can continue to be used for gravel pit; all other provisions hereof still pertain to said Lot Thirteen (13)." (Emphasis added.)

These covenants were recorded on May 1, 1973.

On June 21, 1973, certain "Revised Restrictive Covenants for Governing Green River Subdivisions" were recorded. This document is identical to the first set of restrictive covenants recorded, except it also includes Section 32. Herein lies the problem in this case. Appellants assert that since the first restrictive covenants recorded excluded Section 32 wherein Lots 13 and 14 and a portion of Lot 12 are located, the covenants do not apply to their property, Lot 14. However, a close examination of the facts reveals that such is not the case.

When the revised restrictive covenants were recorded on June 21, 1973, Fear Ranches, Inc., was still the record owner of all the lots in the subdivision. Furthermore, when appellants' agreement for warranty deed was recorded on June 22, 1973, the complete revised restrictive covenants had already been filed. Therefore, appellants are held to have constructive, if not actual, notice of the covenants. Furthermore, the first set of restrictive covenants referred to the gravel pit in Lot 13, also a part of Section 32, so a reasonable person would have been placed on notice that the restrictive covenants were applicable to Lots 23, 13, and 14. We agree with the trial court when it stated at the close of the trial "Well, of course, this case started when a mistake was made over at a lawyer's office, they didn't put Section 32 on the covenants. But interestingly enough they put--they talked about another lot, another tract; 13, for instance, in those original covenants, the tract having to do with the gravel pit which was in Section 32. It would have been obvious to anyone who made a reasonable inquiry that Section 32 was included, but more than that Section 32 was in fact a part of the Green River Subdivision which was in fact mentioned when a plat was filed as early as April of 1973 which defined the Green River Subdiv...