Freeman v. Gee
| Decision Date | 26 January 1967 |
| Docket Number | No. 10590,10590 |
| Parties | d 339 Carroll FREEMAN et al., Plaintiffs and Appellants, v. Leland O. GEE, Vllate D. Gee, James F. Craner and Ida Craner, Defendants andRespondents. |
| Court | Utah Supreme Court |
VanCott, Bagley, Cornwall & McCarthy, Leonard J. Lewis and C. Keith Rooker, Salt Lake City, for appellants.
Alan H. Bishop, Richard L. Bird, Jr., Salt Lake City, for respondents.
This action was commenced by appellants to enjoin the further use by respondents of their respective residences as two-family dwellings, which, it is alleged, were built and used as such by respondents in violation of restrictive covenants of record relating to the established subdivision in which they live. From a judgment dismissing their complaint as stating no cause of action, plaintiffs appealed.
The appellants, 21 in number, are the individual owners of residential lots in Indian Rock Subdivision, a first-class residential area located in the vicinity of Wasatch Drive at about 20th South in Salt Lake City, Utah. The Craners are the owners of a two-family dwelling located on Lot 16 of the subdivision and the Gees are the owners of a two-family dwelling located upon portions of Lots 9 and 10 of the subdivision.
Indian Rock Subdivision, consisting of Lots 1 through 41, was established in April 1952, by its then owners. A set of restrictive covenants relating thereto was recorded on April 26, 1952, in the office of the Salt Lake County Recorder and provided that all and each of the lost in the subdivision 'shall be subject to and shall be conveyed subject to the Reservations, Restrictions and Covenants' thereinafter set forth, the material portions of which read as follows:
Covenant I
Each and every lot above described shall be known and is hereby designated as a 'Residential Lot' and no structure shall be erected, altered, placed or permitted to remain on any such 'Residential Lot' other than one detached single family dwelling not to exceed two stories in height and a private garage for not more than three automobiles, except that one detached single family dwelling or a duplex may be erected on each of Lots Nos. 30, 31, 38, 39, and 41.
No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications, and plot plan showing the location of such building have been approved in writing as to conformity and harmony of external design with existing structures in the subdivision, and as to location of the building with respect to topography and finished ground elevation, by a committee composed of Richard R. Hoyt, John Glauser and J. Alvon Glauser, or by a representative designated by a majority of the members of said committee. In the event of death or resignation of any member of said committee, the remaining member or members shall have full authority to approve or disapprove such design and location or to designate a representative with like authority. In the event said committee, or its designated representative, fails to approve or disapprove such design and location within 30 days, after said plans and specifications have been submitted to it or, in any event, if no suit to enjoin the erection of such building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this Covenant will be deemed to have been fully complied with. Neither the members of such committee, nor its designated representative shall be entitled to any compensation for services performed pursuant to this Covenant. The powers and duties of such committee, and its designated representative, shall cease on and after May 1st, 1957, thereafter, the approval described in this covenant shall not be required unless prior to said date and effective thereon, a written instrument shall be executed by the then record owners of a majority of the lots in this subdivision and duly recorded appointing a representative, or representatives, who shall thereafter exercise the same powers previously exercised by said committee.
No noxious or offensive trade or activity shall be carried on upon any residential lot hereinbefore described or any part or portion thereof, nor shall anything be done thereon which may become an annoyance or nuisance ot the occupants of the remaining residential lots hereinbefore described.
No trailer, basement, tent, shack, garage, or other outbuilding erected in, upon or about any of said residential lots hereinbefore described or any part thereof shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence.
No signs, billboards or advertising structures may be erected or displayed on any of the residential lots hereinbefore described or parts or portions of said residential lots except that a single sign, not more than 3 5 feet in size, advertising a specific lot for sale or house for rent, may be displayed on the premises affected.
No trash, ashes or any other refuse may be thrown or dumped on any residential lots hereinbefore described or any part or portion thereof.
From the record before us the following facts are apparent:
The Craners obtained a warranty deed to Lot 16 on August 30, 1955, which deed recited that Lot 16 was A house was built on the lot in 1955 consisting of two levels, each level being furnished at the outset with complete facilities for living purposes. Upon completion, the Craners occupied the lower level and have done so continuously up to the present time. The upper level was occupied upon completion by the Craners' son and his family who resided there until February, 1964, when they moved. Thereafter the Craners rented the upper level to non-relative tenants at a monthly rental of $100. Since 1955, the only remodeling that was done was the installation in October, 1964, of a front door for the lower level. In a deposition included in the record Craner stated he knew some building restrictions relating to one-family dwellings existed on Lot 16 but he 'paid no attention to it.'
The Gees obtained their building lot by warranty deed dated October 11, 1961, from Earl R. Belnap, who thereafter built a home on the property for the Gees. This deed made no mention of the restrictive covenants, although the deed by which Belnap obtained title to the property in April, 1960, recited that the land was subject to the restrictive covenants here involved. Belnap, a builder of thirty years' experience, had built a prior home for the Gees and had discussed the restrictive covenants with the Gees before building the house. Nevertheless, at the request of the Gees, Belnap drew up plans for, and built, a duplex for the Gees. The house was constructed with complete housing units on both floors, each having two separate outside entrances. The Gees moved into the upper unit in April, 1962, and their son and his family occupied the lower floor from March 15, 1962, until August, 1965, when the son moved, following which the Gees rented to another tenant.
Prior to the construction of the Gee house, one Louis S. DeEnis wrote a letter dated November 13, 1961, to Gee, advising him that residents of the subdivision had met about an apparent violation of the restrictive covenants due to the intended construction of a building other than a single-family dwelling on Gee's lot and requesting Gee to contact DeEnis. In response, Gee signed a letter dated November 20, 1961, addressed to DeEnis, in which it was stated that the house was being built according to plans and specifications approved by him and that he intended to occupy the house with his family and did not intend to use the property 'for income property.'
Appellants filed their complaint on August 12, 1965, followed by an amended complaint on October 13, 1965, by which pleadings they allege that the Gees and Craners each built and used their respective homes as two-family dwellings and that such use is in violation of the restrictive covenants of record pertaining to the subdivision in question restricting the homes to be built on the lots in question to single-family dwellings. Appellants sought injunctive relief against both Gees and Craners to enjoin the use and maintenance of their respective homes as two-family dwellings, or, in the alternative, damages for such violations.
In their answer the Craners admitted the house was designed and built for two-family occupancy. In their answer the Gees admitted they constructed a two-family dwelling and affirmatively allege the residence was and had always been a 'duplex,' occupied by two separate families. In identical answers to the amended complaint, each defendant sets up multiple defenses, included among which are failure to state a claim, failure to start action within 30 days after erection of the buildings, invalid restrictive covenants, laches, waiver, estoppel, abandonment, and in effect, a general denial. Each also has alleged the building committee provided for by Covenant III had never functioned.
After extended proceedings, the court below entered its first pretrial order on October 29, 1965, setting forth as one issue, among others, as to whether there is 'a distinction between construction covenants and use covenants as it applies to this case.' All parties filed motions to amend this pre-trial order, appellants moving that the foregoing issue be stricken and that the court make an express ruling as a matter of law that Covenant I is a 'use' covenant as well as a 'construction or building' covenant. After hearing, the court, on December 17, 1965, entered an amended pre-trial order containing various issues, but taking appellants' motion for the requested ruling under advisement.
Thereafter, the court by memorandum...
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