Decker v. Hendricks
| Decision Date | 13 November 1964 |
| Docket Number | No. 7173,7173 |
| Citation | 97 Ariz. 36,396 P.2d 609 |
| Parties | Wendell T. DECKER and Oleta E. Decker, husband and wife, Claude C. Simmonds and Myrtle E. Simmonds, husband and wife, and Arizona Moving & Storage Company, an Arizona Corporation, Appellants, v. John B. HENDRICKS and Anna M. Hendricks, husband and wife, et al., Appellees. |
| Court | Arizona Supreme Court |
John P. Collins, Tucson, for appellants.
Goddard & Barry, Tucson, for appellees.
Appellees are owners of property in Wilmot Desert Estates, a subdivision near Tucson, in Pima County, Arizona. They brought suit against appellants, seeking to have appellants vacate, abandon and remove a warehouse building in violation of certain subdivision restrictions. The superior court granted a mandatory injunction directing the removal of the building.
In 1946, the developers of Wilmot Desert Estates filed a Declaration of Establishment of Conditions, Restrictions and Reservations, approved by the Board of Supervisors, on their Lots Five through Twelve, being approximately a quarter section of desert land. This property remained up to the time of trial principally desert with only a few homes having been built. It is bordered on the north by Speedway, a principal arterial boulevard in Tucson and Pima County, Arizona.
The first restriction provided:
Appellees Hendricks are the owners of and reside on the south 110 feet of the east 145 feet of Lot Five. The appellees LeVines own thirteen resubdivided lots in the west half of the Wilmot Desert Estates in Lot Six. Other appellees own various portions of Lots Five and Six. Appellants are the owners of the south 200 feet of the north 400 feet of Lot five. Appellants' property is 200 feet in depth from north to south and is south of and contiguous to the 200 feet frontage on which 'neighborhood retail' businesses may be established.
The Deckers purchased the property from Simmonds, a real estate agent, on August 23, 1957. Construction of a bowling alley and cocktail lounge commenced on September 11, 1957, but terminated about three weeks later when Decker was informed by the attorney for the mortgagees that there were restrictions on the property. Not only was the building in violation of the use restriction, but it was also built to a depth of 300 feet from Speedway. Since Decker had made financial commitments to various contractors, he purchased another site without restrictions several blocks from Lot Five along Speedway and transferred the construction contracts to that property. Decker had then spent approximately $9,000 for labor and material in laying foundations and erecting walls.
Decker recommenced construction on Lot Five about six months later, on April 17, 1958, intending to modify the building to a warehouse to be leased to appellant, Arizona Moving & Storage Company. About this time, Simmonds bought back a one-half interest in the Lot Five property and became a co-developer with Decker. On May 8, 1958, appellees commenced this action. Decker and Simmonds continued construction and in late July of 1958 completed the building at a cost of approximately $60,000.
Error is first assigned by reason of the court's failure to apply the equitable doctrines of laches and estoppel as a matter of law against appellees.
It is well established that relief against restrictions will be denied a party guilty of laches in pressing a suit against one violating the restrictions sought to be enforced. Gage v. Schavoir, 100 Conn. 652, 124 A. 535; Brandenburg v. Country Club Building Corporation, 332 Ill. 136, 163 N.E. 440; 5 Restatement, Property § 562; see generally Clark, Real Covenants and Other Interest Which Run with Land (2nd Ed. 1947) 184-186.
Two elements are necessary to constitute laches: (1) Lack of diligence on the part of plaintiff; (2) injury to defendant due to such lack of diligence. Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217; Felix v. Superior Court of County of Pima, 92 Ariz. 247, 375 P.2d 730; Kengla v. Stewart, 82 Ariz. 365, 313 P.2d 424. While lapse of time is an essential element of laches, the length of time must necessarily depend on the circumstances of each case. Appellants urge that the appellees delayed in commencing their suit from September 11, 1957, the date construction started, until May 8, 1958, and due to this lack of diligence appellants incurred large expenses in the construction and modification of the building. But we do not think a detailed examination of the facts supports appellants' position.
As stated, Decker began construction of a bowling alley and cocktail lounge in September of 1957. At that time a sign was placed on the property indicating the nature of the proposed construction. The construction terminated about three weeks later. By terminating construction and choosing another site for the bowling alley and cocktail lounge, appellees could have reasonably assumed that appellant Decker recognized and respected the restrictions and hence took no further steps to protest further construction. Thereafter, when appellants recommenced construction on April 17, 1958, only three weeks elapsed before appellees brought this action. The trial court could have believed that under the circumstances this was not an unreasonable delay or such a lack of diligence as would deprive appellees of their rights.
The three elements of estoppel are (1) affirmative acts inconsistent with a claim afterwards relied upon, (2) action by a party relying on such conduct and (3) injury to the party resulting from a repudiation of such conduct. Holmes v. Graves, 83 Ariz. 174, 318 P.2d 354. The distinction often drawn between laches and estoppel is that the former is synonymous with nonaction and the latter with positive conduct misleading another.
The evidence discloses that originally Hendricks offered to supply water to Decker in aid of the construction of the bowling alley and cocktail lounge. It is urged that this amounts to consent by Hendricks to such construction. But even if this were sufficient to constitute an estoppel, of which we express doubts, it would not affect the right of the other subdivision property owners who later joined with Hendricks as plaintiffs in the action.
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