Flaks v. Wichman
| Decision Date | 15 June 1953 |
| Docket Number | No. 16956,16956 |
| Citation | 128 Colo. 45,260 P.2d 737 |
| Parties | FLAKS et al. v. WICHMAN et al. HUGHES et al. v. WICHMAN et al. |
| Court | Colorado Supreme Court |
George M. Gibson, Colorado Springs, for plaintiffs in error.
Don W. Higby, Colorado Springs, for defendants in error. HOLLAND, Justice.
It may well be assumed that only one question of law is presented by the record in this case, and our answer involves the interpretation of a restricted covenant contained in the deed to the real property here involved. The factual situation is not in dispute and is, briefly:
In the trial court there was a consolidation of two causes of action involving the same question, and we will consider the two cases as one. The Myron Stratton Home, a corporation as owner of property located in Cheyenne Canyon, El Paso county, subdivided a portion into a subdivision known as Cresta Vista in 1945, and in 1946, subdivided an adjoining portion into a subdivision known as Cresta Vista No. 2, and filed a plat of both subdivisions for record. The combined subdivisions consisted of six blocks divided into seventy-one lots. The Myron Stratton Home Corporation sold and deeded all of said lots in both subdivisions with the exception of two, and each lot was conveyed by deed of record containing the following clause:
'That the said party of the first part, for and in consideration of ten dollars and other good and valuable considerations to said party of the first part in hand paid, and in further consideration of the agreements now hereby entered into by and between the parties hereto for themselves, their heirs, successors and assigns, that intoxicating liquors shall never be manufactured, sold or otherwise disposed of as a beverage on or upon the premises hereby conveyed or any part thereof, and that no building shall be constructed upon said premises other than for private residence purposes and the cost of construction of said dwelling house shall not be less than $7500; but that the grantees herein shall have the right to construct a private automobile garage of their own; and does hereby expressly reserve to said party of the first part that in case either or any of the above mentioned conditions concerning intoxicating liquors, or the erection of any building upon said premises, or the maintenance of said premises are broken by the said parties of the second part, their heirs or assigns, then this deed shall be and become at once null and void and all right, title and interest of, in and to the premises conveyed shall revert to the party of the first part, its successors and assigns, and the said parties of the second part by accepting this deed for themselves and their heirs and assigns consent and agree to the reservations and conditions aforesaid.'
Fifty-four single-family residences and one two-family dwelling have been constructed on these lots. The owners of lots in four instances obtained building permits on about August 18, 1952, from the county of El Paso to construct a two-family dwelling known as a duplex. These structures have been completed. Plaintiffs in error are the owners in joint tenancy of other lots in the subdivision by virtue of deeds containing the same restriction; they have constructed single-family dwelling houses on their property, and in their behalf and that of all other owners of lots similarly situated in the said subdivisions, on August 21, 1952, three days after the issuance of the permit, they filed complaint against defendants in error for temporary and permanent injunction restraining them from constructing any dwelling other than a single-family dwelling for private residence purposes, and for an order removing from said property any structures or buildings erected thereon which are contrary to, and violate the provisions of, the warranty deed under which defendants claim title to said property.
In their answers as filed, defendants make the obvious admissions, then deny that the restriction clause prevents their proposed construction, and submit that the proper construction of said restriction is to prohibit business enterprises in the subdivision.
The issue thus formed was tried to the court, and at the conclusion of all the evidence, the court in its conclusions of law stated as follows:
'From the covenants hereintofore set forth, the Court concludes that as a matter of law, without reference to the surrounding circumstances, the said covenants do not forbid the erection of residences other than one family dwellings and that multiple family residences, in this case two family dwellings, may be constructed by the defendants on their respective lots without violating said covenants, * * *.'
The court thereupon denied the injunction and other matters prayed for in the complaint; dispensed with the filing of a motion for new trial; and judgment was entered accordingly, to which judgment this writ is prosecuted.
We are not unmindful of the universal rule that in construing a building restriction, all doubts must be resolved against the restriction and in...
To continue reading
Request your trial
-
Double D Manor, Inc. v. Evergreen Meadows Homeowners' Ass'n, 87SC246
...all doubts must be resolved against the restriction and in favor of free and unrestricted use of property." Flaks v. Wichman, 128 Colo. 45, 48, 260 P.2d 737, 739 (1953). However, we have also recognized that this rule "has no application when the language is definite in its terms. One must ......
-
Weber v. Graner
...239 S.W.2d 675, 686 ('only one dwelling house'); Pearson v. Adams, 50 Can.S.C. 204 ('a * * * dwelling house'); Flaks v. Wichman, 128 Colo. 45, 260 P.2d 737, 739 ("for private residence purposes"); Arnoff v. Chase, 101 Ohio St. 331, 128 N.E. 319 ("one house only on each lot"); Powers v. Radd......
-
Stolba v. Vesci, 19860
...containing more than a single family. See Orange Beach Marina, Inc. v. Warner, 500 So.2d 1068, 1071 (Ala.1986); Flaks v. Wichman, 128 Colo. 45, 260 P.2d 737, 739 (1953) (noting that "private", when used with "residence", is peculiar to privacy of one family, and not applicable to structures......
-
Orange Beach Marina, Inc. v. Warner
...we are not referred to any Alabama case involving a restriction of the exact wording of the one here questioned. See, Flaks v. Wickman, 128 Colo. 45, 260 P.2d 737 (1953) (restrictive covenant in deed providing that no building should be constructed upon the premises conveyed other than for ......
-
Chapter 2 - § 2.10 • JUDICIAL CONSTRUCTION OF THE DECLARATION
...underlying purposes and construction should, if possible, give effect to all provisions contained in covenants).[512] Flaks v. Wichman, 128 Colo. 45, 260 P.2d 737 (1953). See also MSS Vacation Club Owners Ass'n v. Main St. Station Master Ass'n, 2011 Colo. Dist. LEXIS 1573 (June 23, 2011) (e......
-
Chapter 14 - § 14.4 • RESTRICTIVE COVENANTS
...Owners Ass'n v. Caywood, 973 P.2d 698 (Colo. App. 1998).[137] See, e.g., Judd v. Robinson, 92 P. 724 (Colo. 1907).[138] Flaks v. Wichman, 260 P.2d 737 (Colo. 1953). [139] Rossman v. Seasons at Tiara Rado Assocs., 943 P.2d 34 (Colo. App. 1996).[140] Evergreen Highlands Ass'n v. West, 73 P.3d......
-
Chapter 10 - § 10.3 • ARCHITECTURAL AND ENVIRONMENTAL STANDARDS
...See, e.g., Smith v. Nelson, 368 P.2d 566 (Colo. 1962) (no dwelling costing less than $4,000 permitted on any lot); Flaks v. Wichman, 260 P.2d 737 (Colo. 1953) (cost of construction of any dwelling may not be less than $7,500).[132] See, e.g., Smith v. Nelson, 368 P.2d 566 (Colo. 1962).[133]......
-
Chapter 10 - § 10.1 • GENERAL PRINCIPLES
...unrestricted use of property); Buick v. Highland Meadow Estates at Castle Peak Ranch, Inc., 21 P.3d 860 (Colo. 2001); Flaks v. Wichman, 260 P.2d 737 (Colo. 1953); Gleneagle Civic Ass'n v. Hardin, 205 P.3d 462 (Colo. App. 2008) (when interpreting covenant, courts resolve all doubts against r......