Burton v. Douglas County

• Decision Date: 11 February 1965
• Docket Number: No. 36910,36910
• Citation: 399 P.2d 68,65 Wn.2d 619
• Court: Washington Supreme Court
• Parties: LeRoi BURTON, Respondent, v. DOUGLAS COUNTY, a municipal corporation, Defendant, Wenatchee Golf and Country Club, Inc., a corporation, Appellant.

Page 619

65 Wn.2d 619

399 P.2d 68

LeRoi BURTON, Respondent, v. DOUGLAS COUNTY, a municipal corporation, Defendant Wenatchee Golf and Country Club, Inc., a corporation, Appellant.

No. 36910.

Supreme Court of Washington, En Banc.

Feb. 11, 1965.

Rehearing Denied April 6, 1965.

Hughes & Jeffers, Engst & Phelps, Wenatchee, for appellant.

Sperline & Kuntz, East Wenatchee, for respondent.

OTT, Judge.

The Wenatchee Golf and Country Club was incorporated in 1923 as a nonprofit corporation. It developed and constructed a nine-hole golf course, clubhouse, caddy house, and a blacktopped parking lot with a capacity for 100 automobiles. In 1930, certain real property in the immediate vicinity of the clubhouse and along a winding road designated as Country Club Drive was platted into blocks and lots, as indicated by the partial plat below.

Restrictive covenants were adopted by a document executed by the platters in 1953, and thereafter signed by all of the owners of the property here in question. Covenants Nos. 2 and 3, insofar as here material, provided:

'(2) No building shall be erected on any building plot except one detached single-family dwelling. * * *

'(3) No noxious or offensive or business trade shall be carried on upon said premises or permitted thereon; nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.'

The deeds to all of the platted area contained the restrictive covenants.

Within the past five years, the country club added a second nine holes to the golf course on its unplatted area lying east of Country Club Drive and adjacent to the platted area.

In 1955 LeRoi Burton purchased lots 1 and 2 in block 2 adjacent to the clubhouse and the blacktopped parking facilities, and constructed a residence thereon. In 1957, the country club purchased lots 1 and 2 of block 3, and, in 1959, purchased lots 3, 4, and 5 of block 3, which are located adjacent to County Club Drive and across the drive from the clubhouse. A part of lots 1 and 2 of block 3 was planted to grass and used as tees for the adjacent fairways. Lots 3, 4, and 5, although unimproved, had been used by the club members for parking purposes for a period in excess of 10 years. None of the property owners objected to these uses of the lots as being violative of the restrictive covenants, although the lots in block 1 are substantially developed and those in block 2 are fully developed with beautiful suburban homes.

The Wenatchee Golf and Country Club sought to level and blacktop lots 3, 4, and 5 of block 3 to improve the established use of the premises for parking approximately 35 automobiles. LeRoi Burton instituted this action to enjoin the improvement, contending that the proposed plan was violative of restrictive covenant No. 3.

The trial court, sitting without a jury, found that, although the proposed improvement of the parking lot was neither noxious nor offensive, nor an annoyance or nuisance to the neighborhood, nevertheless the golf club operation was a business, and the maintenance of the proposed parking lot, being an integral part of such business operation, was therefore a 'business trade,' in violation of restrictive covenant No. 3.

From the judgment enjoining the proposed improvement, the Wenatchee Golf and County Club has appealed.

The appeal presents a single issue: Was the restriction upon carrying on a 'noxious or offensive or business trade' intended to proscribe the maintenance of a parking lot in conjunction with the operation of the golf club?

There is substantial agreement among the various state courts that the following rules govern the interpretation of restrictive covenants:

(1) The primary objective is to determine the intent of the parties to the agreement, and, in determining intent, clear and unambiguous language will be given its manifest meaning. Gwinn v. Cleaver, 56 Wash.2d 612, 354 P.2d 913 (1960); Katsoff v. Lucertini, 141 Conn. 74, 103 A.2d 812 (1954). (2) Restrictions, being in derogation of the common-law right to use land for all lawful purposes, will not be extended by implication to include any use not clearly expressed. Doubts must be resolved in favor of the free use of land. Granger v. Boulls, 21 Wash.2d 597, 152 P.2d 325, 155 A.L.R. 523 (1944); 14 Am.Jur. § 211, p. 620. (3) The instrument must be considered in its entirety, and surrounding circumstances are to be taken into consideration when the meaning is doubtful. Gwinn v. Cleaver, supra; B. T. Harris Corp. v. Bulova, 135 Conn. 356, 64 A.2d 542 (1949); Parrish v. Newbury, 279 S.W.2d 229 (Ky. 1955).

Applying these rules to the restrictive covenants in question, the intent of the contracting parties becomes apparent. Although no structure other than a detached single-family dwelling was permitted, it was Not intended that the land should be used for residential purposes only. Land may be used without a structure thereon, and here there is no express covenant prohibiting such use. Granger v. Boulls, supra. Had the intent been to restrict to residential use only, the parties could have so provided. Weber v. Graner, 137 Cal.App.2d 771, 291 P.2d 173 (1955). The fact that the parties designated 'noxious or offensive or business trade' as the only prohibited nonresidential use is clear evidence of their intention that other nonresidential uses were permissible.

The word 'business' in restrictive covenants is one of ambiguous and uncertain meaning. 14 Am.Jur. § 218, p. 623. The appellant is a social club, organized under appropriate statutes as a nonprofit corporation. The fact that it charges its members and guests for services and makes a profit on some of its activities does not change its essential character as a social organization. State ex rel. Johnson v. Lally, 59 Wash.2d 849, 370 P.2d 971 (1962). The commonly accepted meanings of the words 'business' and 'trade' do not include 'social' organization. As was said in Easterbrook v. Hebrew Ladies' Orphan Society, 85 Conn. 289, 299, 82 A. 561, 565, 41 L.R.A.,N.S., 615 (1912):

'* * * The word 'business,' in its ordinary and common use among men, is employed to designate human efforts which have for their end living or reward. It is not commonly used as descriptive of charitable, religious, educational, or social agencies. Can it be imagined readily that any one of these parties would have referred to a charitable institution, or a church building or adjunct, or a free school, or a social club, as a business? We imagine not, and it is no less improbable that they employed that term in the instrument in question in the permissible broad sense of it which would include such activities.'

Respondent relies upon Bennett v. Consolidated solidated Realty Co., 226 Ky. 747, 11 S.W.2d 910, 61 A.L.R. 453 (1928). In the cited case, the court held that a parking lot, operated in conjunction with a roadhouse open to the public, was a business use and violative of a covenant which provided: "No trade or business whatever shall be permitted or maintained on this property. * * *" The platted area was not dependent upon the roadhouse as its promotional adjunct, and it was not the intention of the platters, in platting the addition, to further the successful operation of the roadhouse. In the instant case, the residential development was dependent upon the...