Brown v. McDavid
| Citation | 676 P.2d 714 |
| Decision Date | 10 November 1983 |
| Docket Number | No. 80CA0620,80CA0620 |
| Parties | Mackintosh BROWN and Sylvia L. Brown, Plaintiffs-Appellees, v. Don J. McDAVID (and his successor, Devil's Thumb Ranch and Cross Country Center, Inc., a Colorado corporation), Defendant-Appellant, and Mountain Valley Investment Corporation, a Colorado corporation, Defendant-Appellee, and B.J.R. Associates, a joint venture, Louis C. Yager, J. Donald Yager, George Yager, Louis C. Yager Company, Thomas Hilb, Susan Hilb, Colskilo, Inc., a Mississippi corporation, Harold F. Greenwood, Betty J. Greenwood and Jack H. Bennett, Defendants. . II |
| Court | Court of Appeals of Colorado |
Thomas C. Seawell, Denver, for plaintiffs-appellees.
George Davies, P.C., William R. Lahey, Denver, for defendant-appellee.
C. Gerald Starbuck, Denver, for defendant-appellant.
This case arises from the attempt, by the owners of a ranch in Grand County, to develop and subdivide their property.
Although several tracts were sold pursuant to a subdivision development plan, the original owners and their successors ultimately determined to abandon the entire plan. Plaintiffs Mackintosh and Sylvia Brown whose predecessors in title had purchased one of the tracts during the development stage, brought this action seeking to compel the developers and the owners of the ranch to provide them with certain easements, and to enforce certain covenants which were to be part of the development plan and upon which the tract purchasers alleged they relied at the time of the purchase of their respective tracts.
Ultimately, the owners of the other four tracts were made parties to this action, and at trial were aligned as plaintiffs. The case was tried to the court without a jury, and at the conclusion thereof, the trial court entered findings of fact and conclusions of law, and issued its decree determining, in essence, that the covenants, easements, and undertakings to provide easements, which had come into being during the developmental stage, ran with the land, were perpetual, and were not terminable. Having so decreed, the court entered certain orders designed to assure that the affirmative duties, which it found had arisen under the covenants, would be complied with. Upon appeal, we reverse and remand with directions.
Lewis, George, and J. Donald Yager were the joint owners of land in Grand County, commonly known as Devil's Thumb Ranch. In September of 1973, the Yagers entered into a contract with Charles Badsley, C.B. Jensen, and Jack Randall, who, as joint venturers, acting under the name "B.J.R. Associates" (BJR), agreed to develop and sell Devil's Thumb Ranch.
Under this contract, BJR was permitted to take possession of the ranch, have it surveyed, and to divide it into 26 separate parcels for resale as a ranch subdivision. Ultimately, a plan for development evolved which contemplated that certain protective and restrictive covenants were to be drafted and recorded as sales inducements in connection with the offering of Devil's Thumb Ranch. Pursuant to this plan, five lots were sold to various parties in November 1974. The purchasers were Bennett (Brown's predecessor in title), Mountain Valley Investment Corporation, the Greenwoods, Colskilo Inc., and the Hilbs.
Since the entire ranch was still under contract between the Yagers and B.J.R., it was necessary that the Yagers convey the five parcels to B.J.R., who in turn delivered deeds to the five respective purchasers. The promotional material used by B.J.R. included copies of the proposed restrictive covenants covering "Devil's Thumb Ranch Estates," and which we will refer to as the "Covenant Document."
The purchase contracts between B.J.R. and the above five parties had copies of the Covenant Document attached. At the time of closing of the five sales transactions, the Covenant Document had not been recorded nor was it attached, nor made a part of the deeds transferring title to the respective purchasers. By stipulation, however, the parties agreed that all of the purchasers (including McDavid) had relied on the Covenant Document at the time they purchased their respective lots.
The Hilbs, however, requested that their lot be exempted from the benefits and burdens of the Covenant Document in exchange for an express 60 foot easement, which was, in fact, granted to them across the southern end of the ranch.
B.J.R. recorded the Covenant Document in September 1975, with the county clerk and recorder. Subsequent to that recording, Bennett, Mountain Valley, the Greenwoods and Colskilo each executed a letter ratifying, adopting and confirming the recorded Covenant Document.
Eight months later, in May 1976, the Browns purchased their tract from Bennett. Later in 1976, the Browns and Mountain Valley made a request of B.J.R. and the Yagers for an express, legally described, written grant of easement. These demands were not met, and the Browns subsequently commenced this action and recorded a lis pendens in Grand County.
Following the commencement of this action and the filing of a lis pendens by the Browns, the Yagers, together with B.J.R. sold the balance of the tracts to McDavid. As a result of this transaction, McDavid became the title owner of 21 of the 26 tracts or lots which comprised "Devil's Thumb Ranch Estates."
On May 9, 1977, McDavid recorded with the county clerk and recorder a document entitled "Declaration and Consent to Elimination of Protective Covenants," which document we will refer to as the "Termination Document," and which was recorded for the purpose of terminating the Covenant Document. After McDavid had acquired title and recorded the termination document, he was made a party to this action. He thereafter conveyed his interest in "Devil's Thumb Ranch Estates" to a corporation, Devil's Thumb Ranch and Cross-Country Center, Inc.
The dispute here revolves around the language of the covenant document, and whether it could be, and was, properly terminated. This document, after describing generally its purposes, as being in furtherance of a plan for development, improvement, and sale of tracts within Devil's Thumb Ranch Estates, declares, inter alia:
"These Covenants shall run with said property, and shall be binding upon and inure to the benefit of the Developer, each subsequent owner of said real property or any part thereof, and each successor in interest of each such subsequent owner."
The document then discusses certain easements to be reserved to all of the owners for horseback riding, hiking, cross-country skiing, fishing, and other similar uses, and further purports to require each owner to grant a 60 foot wide easement for access and utility purposes to the owners of all other parcels. These easements were undescribed and unlocated at the time of the execution and recording of the Covenant Document.
The last two paragraphs of the document then read as follows:
The trial court, in construing this document, concluded, inter alia, as follows:
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