Donaldson v. White
| Decision Date | 24 February 1972 |
| Citation | 493 P.2d 1380,261 Or. 314 |
| Parties | David DONALDSON and Joyce Donaldson, Respondents, v. Norman WHITE and Olivia White, Appellants. |
| Court | Oregon Supreme Court |
Lewis B. Hampton, Beaverton, argued the cause for appellants. With him on the briefs were Myatt, Bolliger, Hampton & Freerksen, Beaverton.
Gerald R. Pullen, Portland, argued the cause for respondents. With him on the brief was Bruce D. Kayser, Portland.
Defendants built a house on a lot which is subject to a restrictive covenant against the construction thereon of a house of more than one and one-half stories. The obvious purpose of the covenant was to protect the view from an adjacent dominant uphill lot occupied by plaintiffs' home. Plaintiffs brought this action for damages, claiming defendants breached the restrictive covenant by building a house of more than one and one-half stories, thereby destroying plaintiffs' view. Defendants appeal from a judgment for plaintiffs entered pursuant to a jury verdict.
The sole issue on appeal is whether there was properly admissible evidence sufficient to sustain plaintiffs' judgment. Lest the members of the Bar waste their time reading this opinion, we caution that this decision, as well as most decisions on the sufficiency of the evidence, is of no importance to the law of this state and that it is being written solely for the edification of the litigants and their lawyers.
Defendants contend first that there was no evidence from which the jury could find that their house exceeded one and one-half stories. Defendants' house lay generally lengthwise across plaintiffs' view. At its center, the house is substantially 28 feet in width. The front exterior wall of the center part of the house is approximately 14 feet high. The roof slopes upward from the top of this wall at an extremely steep 9 to 12 pitch, that is, nine vertical inches for every horizontal foot. After gaining about eight feet in elevation in just eleven horizontal feet, the roof then peaks and thereafter extends downward at a 4 1/4 to 12 pitch for an additional horizontal distance of 14 feet. There it intersects a dormer wall approximately seventeen feet above the main floor. The described roof does not extend the full length of the house.
A second story was imposed at a height of nine feet above the floor of the main level except for that area comprising the entrance hall. Thus additional living area, 21 feet in width and 7 feet 6 inches in height, was superimposed upon a lower story only 28 feet in width.
On the second floor are two bedrooms, each 12 feet by 13 feet, a third bedroom, 15 feet 9 inches by 14 feet 6 inches, two full bathrooms, and a hallway which is used partly as a balcony overlooking the entrance hall. The main story has seven rooms plus a utility room, a dressing room, a hall, and two bathrooms.
Under the house there is a partial basement, one end of which opens out at grade level. A dispute arose among the witnesses concerning how much of the partial basement was below grade. Plaintiffs' expert testified 50 per cent was below grade, whereas defendants' expert testified about 75 per cent was below grade.
Defendants' expert, in testifying that the second level above the basement was a half story, defined a...
To continue reading
Request your trial
-
Valenti v. Hopkins
...Or. 397, 400-01, 550 P.2d 1379 (1976) (the defendant must comply with a reasonable construction of the restriction); Donaldson v. White, 261 Or. 314, 493 P.2d 1380 (1972) (restrictive covenant enforced); Snashall v. Jewell, 228 Or. 130, 363 P.2d 566 (1961) (same). As a general rule, the con......
-
Guida v. Silva
...(Or. 1961) 363 P.2d 566, 571 [covenant forbidding construction of "'more than one single story dwelling'" enforceable]; Donaldson v. White (Or. 1972) 493 P.2d 1380, 1381 [enforcingcovenant prohibiting construction of house of more than one and one-half stories tall that had obvious purpose ......
-
Drulard v. LeTourneau
...proximity to the plaintiffs' property and beyond the limit prescribed by the ordinance." (Emphasis added) See also Donaldson v. White, 261 Or. 314, 493 P.2d 1380 (1972), where this court, on the issue of damages and in a case quite similar to this one, compared the value of plaintiffs' prop......
-
Alloway v. Moyer
...Properties, Inc., 267 Or. 199, 515 P.2d 1325 (1973) (view preserved to the greatest extent reasonably possible); Donaldson v. White, 261 Or. 314, 493 P.2d 1380 (1972) (height restricted to one and one-half An ambiguous restriction requires only a reasonable construction which is most favora......