Boyles v. Hausmann
| Citation | 517 N.W.2d 610,246 Neb. 181 |
| Decision Date | 24 June 1994 |
| Docket Number | No. S-92-204,S-92-204 |
| Court | Supreme Court of Nebraska |
| Parties | Larry R. BOYLES and Olga J. Boyles, Appellants, v. Gary J. HAUSMANN and Renee S. Hausmann, Husband and Wife, et al., Appellees. |
Syllabus by the Court
1. Declaratory Judgments. An action for declaratory judgment under the provisions of Neb.Rev.Stat. § 25-21,149 et seq.
(Reissue 1989, Cum.Supp.1992, & Supp.1993) is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. The test is whether, in the absence of the prayer for declaratory judgment, the issues presented should properly be disposed of in an equitable as opposed to a legal action.
2. Restrictive Covenants: Equity. The action to declare a restrictive covenant invalid and unenforceable is essentially equitable in nature.
3. Equity: Appeal and Error. In an equity action, the appellate court reviews the record de novo. In such a review, the appellate court reaches conclusions independent of the factual findings of the trial court, provided, where credible evidence is in conflict, the reviewing court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
4. Appeal and Error. As to questions of law, the appellate court is obligated to reach its conclusions independent of the determinations of the trial court.
5. Declaratory Judgments: Justiciable Issues. Declaratory judgments are available when a present actual controversy exists and all interested persons are parties to the proceedings, and then only when a justiciable issue exists for resolution. A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible of immediate resolution and capable of present judicial enforcement.
6. Declaratory Judgments: Justiciable Issues. A declaratory judgment action cannot be used to determine the legal effects of a set of facts which are future, contingent, or uncertain. At the time that the declaration is sought, there must be an actual justiciable issue from which the court can declare law as it applies to a given set of facts.
7. Restrictive Covenants: Intent. Restrictive covenants are to be construed so as to give effect to the intention of the parties at the time they agreed to the covenants.
8. Restrictive Covenants. If the language is unambiguous, the covenant shall be enforced according to its plain language, and the covenant shall not be subject to rules of interpretation or construction.
9. Contracts. An ambiguity exists when the instrument at issue is susceptible of two or more reasonable but conflicting interpretations or meanings. Moreover, the fact that the parties have suggested opposing meanings of the disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous.
10. Restrictive Covenants. When asked to consider a restrictive covenant, a court should keep in mind that restrictive covenants which restrict the use of land are not favored by the law, and if ambiguous, they should be construed in a manner which allows the maximum unrestricted use of the property. If the language is unambiguous, the covenant should be enforced according to its plain language.
11. Restrictive Covenants. If a restrictive covenant agreement also contains a provision which provides for future alteration, the language employed determines the extent of that provision.
12. Restrictive Covenants. Under no circumstances shall restrictions on the use of land be extended by mere implication.
Nile K. Johnson, of Johnson & Mock, Oakland, for appellants.
Gregory P. Drew, Blair, for appellees.
This appeal arises from an action filed by appellants, Larry R. Boyles and Olga J. Boyles, seeking to declare that a restrictive covenant on their real property is invalid. After a bench trial the district court entered an order declaring the covenants valid. The Nebraska Court of Appeals reversed the decision of the district court. Boyles v. Hausmann, 2 Neb.App. 388, 509 N.W.2d 676 (1993). We modify and affirm the decision of the Court of Appeals.
On August 14, 1977, appellants purchased Lot 18 of the Pioneer Hills Subdivision. The Pioneer Hills Subdivision is located at Section 7, Township 17 North, Range 12 East of the 6th P.M. in Washington County, Nebraska. At the time of the purchase, there were covenants on the subdivision lots which restricted the use of the land. These covenants had been established by the original owners of the lots within the subdivision.
Generally, the covenants address the following: (1) limiting residential buildings to one single-family residence per lot; (2) limiting the size and number of attached garages or carports; (3) prohibiting the building of a residence on a plot smaller than the original lot size; (4) prohibiting noxious or offensive activities; (5) prohibiting trailers, tents, shacks, junk cars, or other temporary structures on a lot; (6) setting minimum size of ground floor living space in residences; (7) restricting the extent of grading the land; (8) restricting type and number of various animals permitted on a lot; (9) limiting the use, size, and number of outbuildings on a lot; (10) prohibiting preconstructed dwellings' being moved to a lot; and (11) requiring preapproval of all construction plans.
The covenants also provided that
[t]hese covenants, restrictions and conditions shall run with the land and continue until January 1, 1983, after which time they shall be automatically extended for successive periods of five years, unless an instrument signed by a majority of the then owners of said land shall have been recorded in the office of the County Clerk of Washington County, Nebraska, agreeing to change same in whole or in part.
In February 1984, the original covenants were amended by a majority of the lotowners. Appellants voted in favor of these changes. The following covenants were changed at that meeting: (5), permitting recreation vehicles to be parked on lots on which the resident resides; (8), changing the type and number of animals which may be kept on the lots; (9), changing the size of outbuildings permitted on lots of a particular size; (10), excepting new factory-built homes from the prior restriction; and (11), requiring that all building plans be submitted and approved by Pioneer Hills Association officers.
According to the February 1984 amending instrument, the covenants were to
continue until January 1, 1988, after which time they shall be automatically extended for successive periods of five years, unless an instrument signed by a majority of the then owners of said land shall have been recorded in the office of the County Clerk of Washington County, Nebraska, agreeing to change same in whole or in part.
Amendments were made again in February 1990. Appellants also voted in favor of these amendments. The amendments included the following: (2), changing the restriction on garages and carports; (6), changing square-foot minimum for residential ground floor space; and (9), changing size limitations on outbuildings. The document also included "Water Use Regulations." These regulations generally involve defining the interests of some lotowners in a jointly owned water system, establishing the fees associated with such interests, providing insurance for the system, regulating the maintenance of the system, and outlining the permissible uses of water from the system.
Finally, the February 1990 instrument provided that
[t]hese covenants, water use regulations, restrictions and conditions shall run with the land and continue until January 1, 1995, after which time they shall be automatically extended for successive periods of five years, unless an instrument signed by a majority of the then owners of said land shall have been recoded [sic] in the office of the County Clerk of Washington County, Nebraska, agreeing to change same in whole or in part.
On August 24, 1990, a majority of the landowners changed the covenants to include the covenant which is the source of the present dispute. The disputed covenant prohibits the building of residences or other buildings within 120 feet of Pioneer Hills Road (the county road which runs through the subdivision). This covenant was added to an existing covenant, which prohibited residential structures "on any building lot which is smaller in area than the original plotted number on which it is erected." Appellants did not agree to the disputed covenant and did not sign the new instrument.
Appellants filed a declaratory judgment action seeking to have the district court declare the August 1990 covenant invalid. In their petition, appellants contend that as a result of the new covenant, the value of their lot has substantially decreased. Appellants state that because of the size of Lot 18 and an existing pipeline and easement across the lot, the disputed covenant makes the lot unsuitable for building.
After a bench trial, the district court found generally for appellees. Appellants timely filed an appeal to the Court of Appeals.
In the Court of Appeals, appellants argued that the covenants should be declared invalid because (1) although existing covenants could be changed, new covenants could not be added; (2) appellants detrimentally relied on the fact that when they purchased Lot 18, no setback restriction existed; and (3) the 120-foot setback does not apply uniformly to all of the lots in the subdivision.
The Court of Appeals, finding plain error in the record, examined the February 1990 covenant and found that it did not authorize any changes until after 1995. Accordingly, the Court of Appeals held that the August 1990 covenant was invalid and reversed the decision of the district court. Boyles v. Hausmann, 2 Neb.App. 388, ...
To continue reading
Request your trial
-
Wilkinson v. Chiwawa Cmtys. Ass'n, Non-Profit Corp.
...a minority of landowners to unlimited and unexpected restrictions on the use of their land.’ ” Id. (quoting Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610, 617 (1994)). ¶ 25 While we recognize, as does the dissent, that no Washington case has described the precise contours of when an amen......
-
Ryder Truck Rental, Inc. v. Rollins
...in that it clearly requires the existence of an actual controversy as a prerequisite to declaratory relief. See, Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994); Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858 (1992); Koenig v. Southeast Community College, 231 Neb. 923, 438 N.W.2d 791......
-
Weber v. P&D Development, Inc., No. 29295-5-II (WA 7/13/2004)
...agreement permitted a majority to make changes to existing covenants.' Meresse, 100 Wn. App. at 866 (citing Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610, 617 (1994)). The Meresse homeowners did not act in `a reasonable manner consistent with the general plan of the development' and the ......
-
Putnam v. Fortenberry
...having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement. Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994); Koenig v. Southeast Community College, sought a declaratory judgment that the sale was unlawful. Thus, we must next determ......
-
Redefining "Amend": For the "Better" of Whom?
...Louis Cty., 399 S.W.2d 99, 105 (Mo. 1966)). (121.) Id. (122.) Van Deusen v. Ruth, 125 S.W.2d 1, 2-3 (Mo. 1938); see Boyles v. Hausmann, 517 N.W.2d 610, 616 (Neb. 1994); Grace Fellowship Church, Inc. v. Harned, 5 N.E.3d 1108, 1114 (Ohio Ct. App. 2013); Webb v. Finger Contract Supply Co., 447......