Cree Meadows, Inc. v. Palmer

• Decision Date: 28 June 1961
• Docket Number: No. 6752,6752
• Citation: 362 P.2d 1007,68 N.M. 479,1961 NMSC 86
• Parties: CREE MEADOWS, INC. (NSL), a New Mexico Corporation, Plaintiff-Appellee, v. Joe C. PALMER, M. S. Hamilton, George McCarty, and White Mountain Development Company, a partnership, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 1007

362 P.2d 1007

68 N.M. 479

CREE MEADOWS, INC. (NSL), a New Mexico Corporation Plaintiff-Appellee, v. Joe C. PALMER, M. S. Hamilton, George McCarty, and White Mountain Development Company, a partnership Defendants-Appellants.

No. 6752.

Supreme Court of New Mexico.

June 28, 1961.

Schauer & Stiff, Roswell, Sanders & Bivins, Las Cruces, for appellants.

George L. Zimmerman, Alamogordo, Rodey, Dickason, Sloan, Akin & Robb, Joseph J. Mullins, Albuquerque, for appellee.

CARMODY, Justice.

This is a declaratory judgment action, by which the plaintiff (appellee) sought a declaration of extinguishment of certain restrictive covenants. From a decree of the trial court, which, in effect, approved the extinguishment, defendants (appellants) bring this appeal.

The questions involved relate to to the construction of a restrictive covenant agreement dedicating a subdivision, and whether or not any rights are created to other areas owned by the dedicators when a plat of the subdivision is used in making sales of lots.

In 1947, the defendants Palmer, McCarty and Hamilton executed a document known as 'Restrictive Covenants of Cree Meadows Country Club Subdivision.' The instrument was in four parts, the first entitled 'Blanket Restrictions,' the second 'Residential Area Restrictions'; both of these portions referred only to the areas denominated as Blocks 1 through 11 and Tracts A, B and C. The third was entitled 'Restrictions as to Other Areas,' and specifically dealt with the portions of the dedicated land denominated 'Country Club Tract' and 'Cree Meadows Golf Course.' Generally, this section provided that the country club tract should be used as a hotel or clubhouse, and provided for general forms of amusement as might be enjoyed in connection with a clubhouse or hotel. As to the Cree Meadows golf course, it was provided that it 'shall be used as a golf course, tennis courts, swimming pools, and other lawful athletic events and activities.' The fourth section of the instrument, insofar as is pertinent, provided as follows:

'IV

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'(b) All of the covenants herein shall run with the ownership of the above described property and shall be binding on the undersigned parties and all persons claiming under them until December 31, 1995, at which time said covenants shall be automatically extended for periods of ten years unless by vote of a majority in number of the then owners of lots or tracts within the exterior boundaries of the land described in Part I--Blanket Restrictions, hereof, it is agreed to change the said covenants in whole or in part.

'Provided, however, that at any time hereafter any of said covenants or restrictions, in whole or in part, except the Blanket Restrictions in Part I hereof, may be alleviated, amended, released or extinguished as to any block or tract by written instrument duly executed, acknowledged and recorded by three-fourths of the owners of said block or tract voting according to front foot holding, each front foot counting as one vote, and provided further that the undersigned now own land within the aforesaid boundaries or in close proximity thereto, and that these covenants are a general plan for the benefit of any and all of said land, and consequently that if said restrictions are alleviated or released as aforesaid at any time within ten years from the date hereof, and if at such time Joe C. Palmer, M. S. Hamilton, and George W. McCarty, or any of them own any land within the aforesaid boundaries or anywhere within a radius of one mile of said exterior boundary, then in addition to the aforesaid vote of said property owners, it shall also be necessary to obtain the consent thereto of any two of the three undersigned Joe C. Palmer, M. S. Hamilton, and George McCarty, or the consent of such of them as then own the property aforesaid if the same be less than the three of them. For the purposes hereof, any piece of land designated as a tract and lying within the exterior boundaries of a block as shown on the official plat of Country Club Subdivision shall be a part of that block for all voting purposes. * * *'

The plaintiff is now the sole owner of 'the County Club Tract' and 'Cree Meadows Golf Course.' Slightly more than ten years after the original execution of the restrictive covenants, the plaintiff executed a document entitled 'Extinguishment of Restrictive Covenants,' setting forth therein that the plaintiff owned the entire front footage of both the 'Country Club Tract' and the 'Cree Meadows Golf Course,' and that the restrictions and restrictive covenants for both the tract and the golf course were extinguished except that portion of the golf course representing the present playing area consisting of nine tees, fairways and greens, together with the surrounding area commonly denominated as 'rough,' comprising approximately 100 acres. The purpose of this purported extinguishment was to remove the restrictive covenants as to the country club tract and the south 76.4 acres of the golf course. This extinguishment was approved by the trial court in its declaratory judgment, entered after trial.

None of the parties to this case are purchasers of any of the lots in the subdivision; and the named individual defendants, or some of them, only own at the present time approximately four of the lots, but have an interest in other undeveloped lands in the vicinity.

The trial court found that the golf course was an open area lying in a valley, and one of the few natural open areas in the vicinity of Ruidoso, New Mexico; that the area is a place of natural beauty and affords a picturesque view to passers-by, those living in the vicinity, and particularly those owning lands abutting said area. The court also found that the defendants had sold lots to purchasers in some of the subdivisions by references to the then-existing plat and the restrictive covenants, and that some persons had purchased lots at higher prices than ordinarily would have been paid after having examined the plat, the covenants, and heard the representations of the owners or their agents. The plat itself is not set out in the findings, although referred to, and this court has examined it. Generally speaking, the plat shows the area surrounding the golf course in the form of an irregular, inverted 'V' and as being laid out in subdivisions, tracts, blocks and lots. There are approximately 112 lots in 11 blocks, 4 tracts, and the golf course. The lots and blocks are not of a uniform size or shape, but cover an area somewhat smaller than the approximate 175 acres included in the golf course itself. The focal point of the entire plat is the golf course, showing a general layout of an 18-hole grass green course, to the extent of outlining the location, length and par of each hole. It appears in connection with the evidence offered at the trial that only nine holes of the proposed 18-hole course were ever constructed, and this part of the course is that which is partially abutting and partially adjacent to the subdivided lots, blocks and tracts. It is the portion which was originally intended to be the other nine holes that the plaintiff now desires to utilize for other purposes, in addition to the 'Country Club Tract.' None of the blocks or lots of the entire subdivision shown on the plat actually abut on that portion of the proposed golf course in the area of the second nine holes.

Defendants strongly object to certain of the findings made by the trial court and, additionally, to the conclusions drawn from all of the findings. However, in view of our determination, we do not deem it necessary to consider this attack on the findings, inasmuch as, even from the facts as found by the trial court, it is apparent that the court was in error in applying the law to the facts.

It is to be noted that the provision of the restrictive covenants providing for extinguishment repeatedly refers to 'block' or 'tract,' and nowhere is there any provision for extinguishment of the area denominated 'golf course.' It is quite plain upon an examination of the original...