Drulard v. LeTourneau

• Citation: 286 Or. 159,593 P.2d 1118
• Parties: Norman R. DRULARD and Olive C. Drulard, husband and wife, Appellants, v. Dale W. LeTOURNEAU and Lois S. LeTourneau, husband and wife, Respondents. TC A76-07-10279; SC 25634.
• Decision Date: 24 April 1979
• Court: Supreme Court of Oregon

Page 1118

593 P.2d 1118

286 Or. 159

Norman R. DRULARD and Olive C. Drulard, husband and wife, Appellants, v. Dale W. LeTOURNEAU and Lois S. LeTourneau, husband and wife Respondents.

TC A76-07-10279; SC 25634.

Supreme Court of Oregon, Department 2.

Argued and Submitted Jan. 4, 1979.

Decided April 24, 1979.

J. Elliott Busey, Portland, argued the cause and filed the brief for appellants. With him on the brief were Ray D. Sherwood and Gilley, Busey & Porter, Portland.

Marvin Nepom, Portland, argued the cause and filed the brief for respondents. With him on the brief were Ray F. Merry and King & Merry, Portland.

Before DENECKE, C. J., and TONGUE, BRYSON ^* and LINDE, JJ.

TONGUE, Justice.

This is a suit to enjoin the alleged violation of building restrictions in a platted subdivision in Portland by the construction of a house which impaired the view from plaintiffs' house. Plaintiffs appeal from a decree denying relief. We affirm.

The building restrictions include the following provision:

"No residential building shall be erected, or permitted to remain on any lot in said addition, having more than one story above the level of the street upon which such building fronts, or exceeding 24 feet above the middle point of the front line of such lot, or having a roof pitch exceeding a rise of 7 inches in a run of 12 inches * * *."

Because this is a suit in equity and one for an injunction which would require a home to be torn down or substantially rebuilt, the facts are of particular importance, including the facts relating to the intended purpose of the building restrictions.

The Facts.

(1) Plaintiffs' purchase of two view lots and their subsequent sale of one lot.

Plaintiff Norman Drulard is a civil engineer. Upon moving to Portland in 1965 he and his wife looked for a "view home." They purchased two lots in South Burlingame with a "panoramic view" to the east and northeast, extending from Mt. Hood to Mt. St. Helens. At that time they were informed of the building restrictions. These restrictions, and their intended purpose, were described by plaintiffs' attorney in a statement to the trial court as follows:

"The building restrictions, which are very explicit, in great detail, recognize that the main value of this property is view. Therefore, all the lots with building restrictions and everything else had been planned so as to get the best use out of the land for view and, also, to maintain it as a high quality, well kept neighborhood." ¹

Plaintiffs' house is built on one lot. In 1973 plaintiffs sold the other lot to a Mr. and Mrs. Alexander, except for a thirteen-foot strip retained by them to "protect" their driveway.

(2) Defendants' purchase of lot formerly owned by plaintiffs; preparation of plans for proposed house; hearing on application of variance.

On December 3, 1975, defendants purchased that lot from the Alexanders. Before doing so they filed an application for a variance from zoning code requirements relating to setback lines. With their application defendants were required to submit a complete set of plans for the house which they proposed to build on that lot, showing not only its location on that sloping lot, but the details of its construction, including front, side and back "elevation" views. Those plans showed, among other things, the proposed basement, with daylight windows, and the proposed garage all below the main living area.

Defendant Dale LeTourneau testified that before purchasing the lot he was aware of the building restrictions and that he met with the plaintiffs and showed them a "picture" from a builders' magazine showing "what we wanted to build," but that plaintiffs "rejected the picture" and "asked us to have a set of plans drawn." Defendants then had a set of plans prepared by a Mr. Rogers, a "building-designer" who was not an architect. Mr. Rogers prepared plans which he believed to be in compliance with the building restrictions. Those were the plans submitted by defendants with their application for a variance. Mr. LeTourneau also testified that prior to the hearing on the variance he took those plans to plaintiffs' home where they examined them. It also appears from the tape record of the hearing on defendants' application for a variance that plaintiff Norman Drulard appeared at that hearing and that he stated, on the record, that he "went over the plans and we have no objections to the proposal," other than to suggest that the garage be set back further.

Plaintiff Norman Drulard testified, however, that although defendants had shown to him a "picture" from a builders' magazine, the house as built by them was not in accordance with that picture of the house. He also denied that defendants showed plans to him prior to the variance hearing or that he examined them at that hearing. He also testified that "the only thing discussed" at that hearing was the location of defendants' proposed house on the lot with reference to the street line. He admitted, however, that he "could not say that no one showed (him) any building plans prior to the time the excavation started for the construction of the LeTourneau house."

(3) Construction of defendants' house; objections by plaintiffs.

In January 1976 construction was started. The contractor testified that when they were "staking out" the house and before they started to build Mr. Drulard "came out"; that he showed Mr. Drulard all the plans showing the "elevation" of the house and the "setbacks"; and that he did not recall either approval or objection to the plans by Mr. Drulard, other than that he was concerned about "where it was going to be placed on the lot." The contractor also testified that plaintiffs made no objections during "the framing stage" of the construction; that the first objections by plaintiffs were after the house had been "framed and roofed," and that the basis of their complaint at that time was that "they didn't like the roof line or the way the roof was framed." Mr. Drulard testified that he was in Florida from March 11 to 23 and that it was not until that stage of the construction that he was aware that the house they were building "was going to be two stories" and was not in accordance with the picture that had been previously shown to them.

A meeting was then held in an attempt to work out "some modification that would be acceptable to everybody." Mr. Rogers, the "building-designer," testified that he then drew "some sketches" and made some changes on the roof and proposed moving the top portion of the roof down "about a foot"; that plaintiff Norman Drulard then said that "everything is agreed, but I would like to have you lower those basement windows," and that the negotiations then broke down. Mr. LeTourneau testified to the same effect. That testimony was not denied by plaintiffs. Indeed, Mrs. Drulard testified that Mr. Rogers "tried hard" and "what he said in court this morning was absolutely true."

After those negotiations "broke down" this suit was filed.

(4) Conflict of testimony whether house is "one story" house; interference with view.

Plaintiffs' complaint alleges that defendants' house violated the building restrictions in that

" * * * the building has more than one story above the level of the street upon which it fronts, in that it is not in harmony with existing buildings in the addition, in that it restricts the view of plaintiffs, and in that the design, material and construction of said building is inferior to existing buildings in the addition."

The principal disputed issue of fact at the time of trial was whether the house "has more than one story above the level of the street." There was a direct conflict in the testimony on that issue.

The front of the lot on which the house is built slopes downward from left to right. The floor of the "daylight basement" (if it is a basement) is excavated "into" the hillside on the left or upper side, with windows above the ground level. The floor of the adjacent garage, on the right or lower side, is not below ground level. Above that "daylight basement" and garage is a "split level" living area.

Plaintiff offered the testimony of a realtor-appraiser, who had not seen the interior of the house, to the effect that it is more than a "one story" house and is a "split entry" or a "tri-level" house. That witness admitted, however, that "the definition of a 'story' would exclude that level between the concrete masonry floor below grade and the next floor up," because "(o) therwise, every house out there would be two stories."

Defendants offered the testimony of the contractor who built the house that the "basement area of the house (is) below the street level" and the house "has only one story above street level." As previously stated, however, the "basement" has windows above the ground level. Mr. Rogers, the "builder-designer," also testified that "in the trade" this house would be "classified" as a "one-story house."

It was conceded, however, that the roof of the house obstructed a portion of the view from plaintiffs' house in that plaintiffs could no longer see Mt. St. Helens to the northeast, although they could still see Mt. Hood to the east.

On the other hand, it was also conceded that the height of defendants' house from the middle point of the front line was twenty-one feet, three inches, and that there would be a greater obstruction to plaintiffs' view by a one-story house with a height of twenty-four feet, as permitted under the building restrictions.

(5) Plaintiffs' testimony of damages.

Plaintiffs' complaint asks, in the event of the refusal of an injunction, that they be awarded damages in the sum of $8,000. To support that request plaintiffs offered the testimony of a realtor-appraiser to the effect that the value of plaintiffs' house "without the obstruction of the house to the north" and "assuming that the house to the north did not exist" was $76,500, but that after its construction the value of plaintiffs' house...