Gwinn v. Cleaver
| Decision Date | 18 August 1960 |
| Docket Number | No. 35283,35283 |
| Citation | 354 P.2d 913,56 Wn.2d 612 |
| Parties | Howard GWINN and Dorothy K. Gwinn, his wife; John Ellison and Isabelle Ellison, his wife, Appellants, v. Charles L. CLEAVER and Susan Cleaver, his wife, Respondents. |
| Court | Washington Supreme Court |
Stanley N. Kasperson, Seattle, for appellants.
Wayne C. Booth, and Wright, Booth & Beresford, Seattle, for respondents.
Appellants, plaintiffs below, sued to enjoin a threatened breach of restrictive covenants. The court found that projected building plans would not breach the restrictive covenants and dismissed the action. Plaintiffs appeal.
Appellants own lots Nos. 7 and 9 in Lakewood Terrace, a platted subdivision in King county, on the south side of Lake Burien. Respondent 1 owns lot No. 8. Appellant Gwinn platted the tract in 1951 and recorded the same, together with restrictive covenants, in August, 1951.
The restrictive covenant, which incorporates the plat by reference, provides, in part:
'All lots in this tract shall be known and described as residential lots; no structure shall be erected * * * other than one detached single-family dwelling for single family occupancy only, not to exceed one story in height or one story and a daylight basement, and a private garage for not more than two cars;
'No building shall be located nearer to the lake shore line than 100 feet nor nearer to the side lot line than 8 feet, in lots, 7, 8, 9, and 10 of said plat;' (Italics ours.)
The plat contains a description of the boundaries which, after fixing the point of beginning, recites:
'* * * south 87~ 23' 23"' west 314.32 feet; thence north 1~ 31' 33"' west 693.40 feet to the shore of Lake Burien; thence north 78~ 06' 30"' east 20.97 feet; thence north 84~ 28' 50"' east 135.55 feet; thence south 80~ 30' east 161.38 feet; thence south 1~ 31' 33"' east 669.81 feet * * *' (Italics ours.)
On the plat diagram, there is a line corresponding to those calls, which fixes the shore side boundary of the lots.
Respondent, relying upon the filed restrictive covenants and plat, bought lot No. 8. He delivered a copy of the documents to his architect, who prepared plans for the projected house.
Appellants claim that the plans locate the house less than one hundred feet from the lake shore line and that it exceeds the height limitation. It was further argued that the proposed grading of respondent's property would raise the level of a portion of lot 8 in violation of the restrictive covenant. Appellant John Ellison also claims that respondent's property is burdened with a drainage easement in favor of Ellisons' property, and that the proposed grading would interfere with the use of the easement.
A challenge to the sufficiency of appellants' evidence was sustained on the ground that no potential violation of the restrictive covenants had been shown.
Appellants assign error (1) to the trial court's exclusion of evidence as to the actual, physical shore line on the ground that admission of such evidence would violate the parol evidence rule; (2) to the exclusion of evidence as to the effect of the proposed land grading on the alleged drainage easement; (3) to the sustaining of respondent's challenge to the sufficiency of the evidence.
Respondent contends that the restrictive covenant is clear and unambiguous, and that the term 'lake shore line' as used therein refers to the calls and line on the plat describing the lake shore side boundary of the lot. The trial court of found, and thereupon rejected extrinsic evidence offered by appellants to show that 'lake shore line' means the actual, physical shore of the lake.
It is the court's function to determine from the document whether it is ambiguous or incomplete. Only then is resort to parol evidence permissible. Washington Fish & Oyster Co. v. G. P. Halferty & Co., 44 Wash.2d 646, 269 P.2d 806.
A restrictive covenant is to be strictly construed. Miller v. American Unitarian Ass'n, 100 Wash. 555, 171 P. 520; Granger v. Boulls, 21 Wash.2d 597, 152 P.2d 325, 155 A.L.R. 523. Public policy favors the free use of one's own land. Imposed restrictions will not be aided or extended by judicial construction, and doubts will be resolved in favor of the unrestricted use of property.
The law is settled that, in the interpretation of maps and plats, all doubts as to the intention of the owner or maker should be resolved against him. Matthews v. Parker, 163 Wash. 10, 299 P. 354.
The platter's intention is gathered from the plat itself. Osborne v. Seattle, 52 Wash. 323, 100 P. 850. In Olson Land Co. v....
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