Gosnay v. Big Sky Owners Ass'n, 83-74

• Decision Date: 28 July 1983
• Docket Number: No. 83-74,83-74
• Citation: 205 Mont. 221,666 P.2d 1247
• Parties: Maurice C. GOSNAY and Pamla C. Gosnay, Plaintiffs and Respondents, v. BIG SKY OWNERS ASSOCIATION, and Robert J. Fritz, et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 1247

666 P.2d 1247

205 Mont. 221

Maurice C. GOSNAY and Pamla C. Gosnay, Plaintiffs and Respondents, v. BIG SKY OWNERS ASSOCIATION, and Robert J. Fritz, et al.,

Defendants and Appellants.

No. 83-74.

Supreme Court of Montana.

Submitted June 9, 1983.

Decided July 28, 1983.

Morrow, Sedivy & Olson, Bozeman, Edmund Sedivy and Terrence Schaplow argued, Bozeman, for defendants and appellants.

Moore, Rice, O'Connell & Refling, Bozeman, Barry O'Connell argued, Bozeman, for plaintiffs and respondents.

MORRISON, Justice.

Big Sky Owners Association and the individual members of the Big Sky Architectural Committee appeal the October 7, 1982, judgment of the Eighteenth Judicial District Court which allowed Maurice and Pamla Gosnay to construct a stable and keep horses on their property and barred the Architectural Committee from ordering removal of the fence the Gosnays built around their property.

Sweetgrass Hills is a subdivision in the Big Sky, Montana area and is owned by Big Sky of Montana, Inc. Protective covenants were issued by Big Sky of Montana, Inc., to control the uses to which the subdivision can be put. Covenant 1(A)(i) of the protective covenants grants to the Big Sky Architectural Committee the express authority to approve, change or overrule the location of any structure on any residential lot in the subdivision. Other protective covenants provide guidelines to be followed by the Committee when exercising its authority. The Gosnays purchased land by a warranty deed which is subject to the protective covenants. Therefore, those covenants control in this appeal. Heritage Heights Home Owners Ass'n v. Esser (Ct.App.1977), 115 Ariz. 330, 565 P.2d 207.

Maurice and Pamla Gosnay were shown land in the Sweetgrass Hills Subdivision by realtor David Hyde. The Gosnays became interested in ten acres of land referred to as Tract II, the largest tract in the subdivision.

Gosnays expressed to Hyde an interest in constructing a stable and boarding their horses on the land. The Gosnays own the Karst Camp and use their Belgian Draft horses to pull sleighs in the winter. Mr. Hyde testified that after reviewing the prohibitive covenants with the Gosnays, he informed them that a decision regarding the horses and stable would be up to the Architectural Committee. Mr. Gosnay testified that Mr. Hyde told him there would be no problems, under the prohibitive covenants, in having horses and a stable on that land.

The Gosnays purchased Tract II and began to plan a jackleg fence to completely enclose their property. The Architectural Committee refused to grant Gosnays permission to build the fence. Construction of the fence was commenced in November of 1981, despite lack of approval.

On November 9, 1981, Maurice and Pamla Gosnay filed a declaratory judgment seeking to judicially establish the authority of the Big Sky Owners Association (BSOA) to designate Gosnays' land as an area where stables could be constructed under the applicable prohibitive covenants. BSOA filed a complaint in December 1981, seeking a preliminary injunction for the removal of the fence Gosnays had begun constructing. Gosnays then filed a third party complaint on January 13, 1982, against the members of the Big Sky Architectural Committee, attempting to establish the validity of the fence construction.

The actions were consolidated and a bench trial was held September 7 and 8, 1982, in the District Court of the Eighteenth Judicial District. On October 8 1982, a judgment was entered allowing Gosnays to keep their fence and horses and to build a stable. Gosnays were also awarded $5,000.00 in attorneys' fees on November 17, 1982. BSOA and the Architectural Committee now appeal those judgments. We vacate the judgment of the District Court.

Four issues are presented to this Court for our review:

1. Did the District Court err in allowing Gosnays' jackleg fence to remain on their property?

2. Did the District Court err in allowing Gosnays to build a stable on their property?

3. Did the District Court err in allowing horses to be kept on the property?

4. Did the District Court err in ordering defendants to pay Gosnays' attorneys' fees?

The following are the primary Prohibitive Covenants relevant to issues one, two and three:

"NOW, THEREFORE, Big Sky does hereby establish, dedicate, declare, publish and impose upon the premises the following Protective Covenants which shall run with the land and shall be binding upon and be for the benefit and value of Big Sky and all persons claiming under it, its grantees, successors and assigns and shall be for the purpose of maintaining a uniform and stable value, character, architectural design, use and development of the premises. These Protective Covenants shall apply to the entire premises and to all improvements placed or erected thereon unless otherwise specifically excepted and shall have perpetual existence unless terminated by law or amended as herein provided.

1. USE

"F. TRACTS I AND II

"a. Tracts I and II shall be used for single family residences only. No buildings or improvements shall be placed, constructed, reconstructed, altered or remodeled on any site except to provide for a single family dwelling with an attached or detached garage. Any plans for any dwelling on either tract shall provide for off-street parking for at least two vehicles.

"b. Tract I may be further subdivided by the owner thereof into not more than three separate, smaller tracts for residential use only and for the erection of one single family residence with attached or detached garage on each separate tract, each such small tract to be not less than one acre in size.

"c. Tract II may similarly be further subdivided by the owner thereof into not more than four separate, smaller tracts for residential use only and for the erection of one single family residence with attached or detached garage on each separate tract, each such smaller tract to be not less than one acre in size.

"...

3. ARCHITECTURAL COMMITTEE

"D. No building, construction, reconstruction, alteration, remodeling, landscaping, parking, fence, wall or other improvement shall be placed, constructed, erected, repaired, restored, reconstructed, altered, remodeled, added to or maintained on any lot or tract until building drawings, plans and specifications (which must have been prepared by a licensed architect for all construction, reconstruction, alteration or remodeling), and such other information as the Committee may reasonably require, including without being limited to, colors, building materials and models, have been submitted to, and approved by, a majority of the Committee in writing; nor may the same be commenced until the Committee shall have issued a permit allowing for such improvements. "...

8. ANIMALS

"Animals such as dogs, cats, birds or horses are allowed in the subdivision as pets only and so long as they do not constitute a nuisance to others. Kennels, stables or other facilities for the keeping or retention of animals shall be restricted to areas so designated by the Committee. The commercial breeding, care, raising or keeping of any animal is forbidden. If a particular animal or animals shall, in the discretion of the Committee, become a nuisance, the Committee shall have the authority to require that the same be kept tethered or confined on the owners property and the Committee may further require that when the said animal or animals are taken from the said property such animals must then be kept on a leash or bridle and must be under the owner's control at all times."

The...