Case v. Morrisette

• Decision Date: 27 February 1973
• Docket Number: No. 22810.,22810.
• Parties: Horace CASE, Appellant, v. Arthur E. MORRISETTE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.2d 1300 (1973)

Horace CASE, Appellant, v. Arthur E. MORRISETTE.

No. 22810.

United States Court of Appeals, District of Columbia Circuit.

Argued March 12, 1970.

Decided February 27, 1973.

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Richard J. Hopkins, Washington, D. C., for appellant.

Joel C. Wise, Washington, D. C., with whom Roger Peed, Washington, D. C., was on the brief, for appellee.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The sole question presented for our decision is whether an owner of property in a subdivision acquired a right to park vehicles on a lot which an inscription on a revised copy of the subdivision plat, annexed to a declaration of covenants and referred to in the grantee's deed, indicated had been set aside for that purpose. The District Court, on facts not materially in dispute, answered that question in the negative, and entered judgment against the plaintiff-owner. This appeal challenges the legal conclusions the court drew from the facts and the validity of the judgment which the court was thus led to pronounce.

We would be less than candid if we did not mention at the outset that we have encountered a number of difficulties which we should not have been required to solve. We have found omissions from the record of information which would have greatly simplified our review. We have, in some instances, been confronted with questions which neither side has addressed, and in others with positions assumed without factual support and contentions advanced without citation of authority or even supporting reasoning.¹ This has compelled us to expend a great deal of time and effort which otherwise could have been avoided.

Our own investigation into this case has involved a thorough analysis of the record and painstaking examination of relevant bodies of legal doctrine in order to deal adequately with the manifold problems uncovered. On the basis of our study, we conclude that the trial judge clearly erred in the disposition which he made. Accordingly, we reverse the judgment appealed from and remand for further proceedings.

I

Dexter Heights, in Southeast Washington, was developing during World War II as a subdivision of 89 lots with apparently a nearly equal number of residential units. Throughout the remainder of the war, the subdivider, Dexter Realty Company, rented these units to persons engaged in the defense effort; thereafter the units, with the lots on which they were built, were sold individually to returning veterans. In 1949, Horace Case, the appellant, came into the ownership of Lot 44-0 in Square 5869, improved by the dwelling numbered 1349 Talbert Terrace, Southeast, in which he continues to reside.² The parcel sprouting this litigation—Lot 43 in Square 5869—also abuts Talbert Terrace and is wholly unimproved. A revision of a portion of the original subdivision plat of Dexter Heights, on which revised plat the layout of the 89 lots and other features are depicted,³ is attached to and recorded with a declaration of covenants imposing use restrictions uniformly on the subdivided properties.⁴ In the written declaration, all lots are identified by reference to their lot and square numbers as shown on the revised plat appended.⁵

The written declaration makes no mention of a servitude on Lot 43—the allegedly encumbered lot—for vehicular parking. In regard to Lot 43, the declaration refers to the revised plat and states that it is subject to a building line restriction shown thereon, and to a recorded agreement between the subdivider and the District of Columbia concerning water and sewer connections and party walls.⁶ The annexed copy of the revised subdivision plat, however, bears, within the boundaries it marks for Lot 43, an inscription reading "To be Graded & Cinder Covered for Car Parking (50 cars) Provide Driveway Entrance from Talbert Terrace."⁷ Lot 43 has never been graded, cinder-covered or furnished a driveway entrance from Talbert Terrace. It has never been used for parking, and without grading and a driveway entrance it could not be so used.

In 1963, the corporate successor to Dexter Realty Company conveyed Lot 43 to Arthur L. Morrisette, the appellee. The deed to Morrisette characterizes Lot 43 as "comprising the area for car parking . . . as shown on the" copy of the revised subdivision plat recorded with the declaration of covenants.⁸ Morrisette proposes to develop Lot 43 for parking, not by residents of Dexter Heights, but by tenants of an apartment complex he plans to construct on adjacent land.⁹

It was to prevent Morrisette from doing so that Case brought suit in the District Court.¹⁰ He claimed that the inscription on the revised subdivision plat in regard to Lot 43¹¹ gave rise to a right appurtenant to the other properties comprising Dexter Heights to use Lot 43 for parking to the extent of 50 cars. On this theory Case sought a judgment declaratory of that right, an injunction restraining Morrisette from interfering with it, and a mandatory injunction compelling Morrisette to grade and cinder-cover Lot 43 and provide it with an entrance driveway from Talbert Terrace. Morrisette, advancing several defenses, asserted primarily that the inscription did not confer any such interest in Lot 43 upon other property owners in Dexter Heights.¹² The District Court, after a trial without a jury, rendered judgment in favor of Morrisette, and this appeal followed.

II

Upon completion of the evidentiary and argumentative presentations, the trial judge orally announced his decision and his reasons therefor, and shortly thereafter filed written findings of fact and conclusions of law.¹³ The written findings indicate nothing as to the basis for the judge's decision,¹⁴ and only one of the accompanying conclusions is in any wise helpful on that score.¹⁵ That conclusion was that Case had "failed to show that the declaration . . . grants to him or other lot owners in the subdivision . . . any right, title, or interest in . . . Lot 43. . . ."

Some additional and much needed enlightenment is derived from the judge's statement at the end of the trial.¹⁶ The question, said the judge, was whether the inscription on the revised subdivision plat within the boundaries marked for Lot 43 created an easement for parking.¹⁷ That question the judge answered in the negative for reasons which, as nearly as we can glean, were the following. Firstly, the written declaration of covenants imposed a number of restrictions on the lots comprising Dexter Heights, but did not mention an area set aside for parking.¹⁸ Secondly, Lot 43 has never been used or useable for parking, and the property owners had not asserted any right to have it made suitable for that purpose.¹⁹ Thirdly, "an easement cannot be created by ambiguous language."²⁰ The last clause of the inscription pertaining to Lot 43—"Provide Proper Driveway from Talbert Terrace"²¹—"is ungrammatical and not understood."²² And "the legend on the plat is purely descriptive and was not intended to create an easement or other property rights."²³ Fourthly, no equitable servitude on Lot 43 arose because it was never used for parking.²⁴

In examining the District Court's decision that property owners in Dexter Heights have no claim on Lot 43, we remain advertent to the consideration that "findings of fact shall not be set aside unless clearly erroneous,"²⁵ and in that regard we do not distinguish between written and transcribed oral findings.²⁶ But although the findings "come here well armed with the buckler and shield" conferred by the "clearly erroneous" standard,²⁷ they do not have the force and effect of a jury verdict.²⁸ To be sure, the findings are presumptively correct²⁹ and the burden of persuading us that they are "clearly erroneous" rests upon Case.³⁰ Equally certain it is that we are not to weigh the evidence de novo,³¹ or disturb the findings simply because we might have reached a contrary result on the same evidence.³² And not only must we give "due regard . . . to the opportunity of the trial court to judge of the credibility of the witnesses,"³³ but we must also measure the findings by the "clearly erroneous" test even when they are based on inferences drawn from documents or undisputed facts.³⁴

On the other hand, a finding is "clearly erroneous" if it is without substantial evidentiary support³⁵ or if it was induced by an erroneous application of the law.³⁶ Beyond that "a finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."³⁷ In reviewing the trial judge's decision in this case, then, we must look to all of the evidence of record³⁸ to determine whether the findings can pass muster. And in making that determination, we also bear in mind that conclusions of law do not find shelter in the "clearly erroneous" requirement.³⁹

III

The core question, as the District Court stated,⁴⁰ is whether the inscription made within the area of Lot 43 as marked on the copy of the revised subdivision plat annexed to the declaration of covenants imposed on that lot a servitude in favor of the other lots in Dexter Heights. In approaching a solution to this question, we remember that Case seeks relief by way of a declaration of the right he conceives and an injunction enforcing that right. We need not, then, ponder whether the inscription survives the strictures of the common law as to covenants running with the land for purposes of actions for damages occasioned by breach.⁴¹ The relevant inquiry here is whether the inscription meets the far less onerous prerequisites to equitable enforcement of property servitudes.⁴²

Those prerequisites are two in number. The first is a servitude engrafted upon one parcel of land with a view to benefiting one or more other parcels.⁴³ The second is notice of the servitude, to the party against...