Foster v. Nehls
| Decision Date | 29 June 1976 |
| Docket Number | No. 1398--III,1398--III |
| Parties | F. Stuart FOSTER et al., Respondents, v. Ronald L. NEHLS and Charlotte Nehls, husband and wife, Appellants. |
| Court | Washington Court of Appeals |
Douglas A. Wilson, Wilson & Flower, Yakima, for appellants.
Walter G. Meyer, Jr., Halverson, Applegate, McDonald, Bond, Grahn, Wiehl, Almon & Putney, Yakima, for respondents.
This is an action to enforce a restrictive covenant. The covenant provides No structures shall be erected, altered, placed, or permitted to remain on any residential building plot other than one detached single-family dwelling not to exceed One and one-half stories in height and a private garage for not more than two cars.
(Italics ours.)
Prior to construction of his home, Mr. Nehls was advised by his neighbors on several occasions that they believed his planned home to be in violation of the above restrictive covenant governing construction in their hillside subdivision. Nevertheless, the Nehlses proceeded with construction. Hence, this action for injunctive relief was begun by the neighbors as foundation forms were being built, but before any concrete was poured. They alleged the new home would substantially obstruct their view, in violation of the restrictive covenant.
The Nehlses completed construction before the trial court found the second story of the home to be in violation of the restrictive covenant and ordered the second story removed. This appeal followed.
The trial court declined to define 'one and one-half stories in height' by an inches and feet measurement, but found the restrictive covenant to prohibit construction of any residence which substantially obstructs the view in question. On appeal, we understand the Nehlses to contend that the trial court's finding of an obstruction, without also giving an inches and feet definition of 'one and one-half stories in height', is inadequate to find a violation of the restrictive covenant.
Intent of the parties controls in the interpretation of a restrictive covenant. Intent is a question of fact, to be discovered by reference to the instrument in its entirety and the manifest meaning of language used by the parties. 1 Doubtful intent must be resolved in favor of the free use of land. Ambiguous intent is to be clarified by reference to the instrument, together with all surrounding facts and circumstances. Ambiguity exists in the present case by the use of a floor-space description common in the construction and real estate business 2 ('one and one-half stories') to describe a height restriction ('one and one-half stories in height'). Therefore, the court properly considered additional testimony in determining the intent of the parties.
The court found upon substantial evidence that the restrictive covenant prohibits the construction of any residence which substantially obstructs the view enjoyed by other residents of the subdivision. 3 Testimony by witnesses supports this finding that it was not the intent of the parties to reduce the height restriction to an inches and feet definition, but to protect the view enjoyed by other neighbors regardless of the actual height of the obstructing buildings. For example, it was the testimony of Elmer L. Hovde, an origial platter and developer of the subdivision, that the purpose of the restrictive covenant 'was to not obstruct any views from any house.' According to Mr Hovde, the actual height of houses in the subdivision varies with the lay of the land, with a flat area below the hillside allowing higher construction without obstructing the view enjoyed by neighbors above. The finding of the court being supported by substantial evidence, that finding will not be disturbed on appeal.
Testimony and photographs in evidence also support the finding that the neighbors' view was substantially obstructed by the Nehls home. That finding supports the conclusion entered by the court that the Nehls home is in violation of the restrictive covenant.
The Nehlses further object to the court's personal view of the premises, which they argue the court erroneously relied upon as evidence to justify its findings and conclusions of a violation of the restrictive covenant. We agree with the Nehlses that 'a view of the premises is for the purpose of better understanding the evidence admitted, and not for the purpose of taking new evidence.' 4 However, in its memorandum opinion, the court makes clear that its view was used for no other purpose than to understand matters already in evidence. The court writes:
The court viewed the property, the home in question, together with plaintiffs' homes and the general area contained in the Sunrise Addition to the Selah. While the pictures in evidence make obvious the inconsistency of defendant's home compared with the other homes pictured, there is always a difference in perspective when viewed objectively from all angles. In this case, however, I feel the pictures are not only good representation of the areas portrayed but also accurate in perspective. . . . The view by the court also confirms that the defendant's home, while an attractive addition to the subdivision, is unlike, due to the design, any other home in Sunrise Addition. The outstanding difference is its height.
The Nehlses' argument concerning misuse of the court's view of the premises is not well taken.
The Nehlses also argue an absence of evidence to support the court's finding that money damages are inadequate to compensate the neighbors for their obstructed view. However, there is substantial evidence that the neighbors will lose a great portion of their view and full enjoyment of their property in the absence of injunctive relief. We agree with the trial court that land is generally considered a unique commodity which cannot be adequately replaced by money. 5 Therefore, equity should intervene in this case to restore the land and its full enjoyment to the rightful owner. 6 We conclude the court committed no error in finding money damages an inadequate remedy in ...
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Pelosi v. Wailea Ranch Estates, 20254.
...objections; equities not balanced where property owner "act[s] in violation" of a covenant (emphasis added)); Foster v. Nehls, 15 Wash. App. 749, 551 P.2d 768, 772 (1976) (property owner "`assumed the risk' of the outcome" by continuing to build in violation of restrictive If "taking a chan......
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90 Hawai'i 188, Hiner v. Hoffman
...have similarly concluded that language such as that found in the covenant here is ambiguous. See, e.g., Foster v. Nehls, 15 Wash.App. 749, 551 P.2d 768, 771 (1976) ("Ambiguity exists in the present case by the use of a floor-space description common in the construction and real estate busin......
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Responsible Urban Growth Group v. City of Kent
...360 (1973); Radach v. Gunderson, 39 Wash.App. 392, 398-99, 695 P.2d 128, review denied, 103 Wash.2d 1027 (1985); Foster v. Nehls, 15 Wash.App. 749, 753-54, 551 P.2d 768 (1976), review denied, 88 Wash.2d 1001 (1977); Mahon v. Haas, 2 Wash.App. 560, 565, 468 P.2d 713 ...
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Bauman v. Turpen
...meaning of the specific words and terms used in the covenants."17 That is precisely what the trial court did here. ¶ 18 Our decision in Foster v. Nehls,18 supports the trial court's reliance on extrinsic evidence to conclude that the one-story restriction was intended to preserve neighborin......
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Enforceability of Land Use Servitudes Benefiting Local Government in Washington
...128 A.2d 430 (1957). 26. Johnson v. Mt. Baker Park Presb. Church, 113 Wash. 458, 194 P. 536 (1920); Foster v. Nehls, 15 Wash. App. 749, 551 P.2d 768 (1976). 27. This is not to say courts must find that the burden of any servitude touches and concerns the land merely because it is imposed by......