Hein v. Lee

• Decision Date: 10 May 1976
• Docket Number: No. 4512,4512
• Parties: Emil A. HEIN, Appellant (Defendant below), Darlene E. Hein et al. (Defendants below), v. Neil B. LEE et at., Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 286

549 P.2d 286

Emil A. HEIN, Appellant (Defendant below), Darlene E. Hein et al. (Defendants below), v. Neil B. LEE et at., Appellees (Plaintiffs below).

No. 4512.

Supreme Court of Wyoming.

May 10, 1976.

Rehearing Denied June 9, 1976.

Emil A. Hein pro se.

Travis W. Moffat of Meier, Gist & Moffat, Lander, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

THOMAS, Justice.

This litigation arose out of the operation of a sawmill by Emil A. Hein (hereafter referred to as the appellant) on property which he owns and which is situated approximately eleven miles west of the town of Dubois, Wyoming. The appellant's neighbors brought the action seeking injunctive relief with respect to the operation of the appellant's sawmill. The district judge, after viewing the premises while appellant was operating his sawmill, ¹ and after receiving testimony and other evidence, entered a Judgment and Decree enjoining the appellant from the operation of his sawmill. The trial court permitted the appellant about seven and one-half months to complete commitments relating to the commercial use of the sawmill, and then required that it either be removed together with incidental accumulations or that it be completely housed and its use thereafter limited to the personal needs of the appellant.

In his appeal from this judgment and Decree the appellant asserts seven issues for resolution by this Court. They are:

1. Whether a 'Statement of Restrictive Covenants to Run With Land' dated September 28, 1966, is binding upon the appellant's land.

2. Whether a contemporaneous quitclaim deed from William A. Meckem to Johnson Cattle Company, Inc., from which Meckem bought the land in question, which was not delivered or recorded, was merely incidental to a security transaction and had inchoate legal efficacy prior to its delivery, or whether it had the effect of defeating the efficacy of the restrictive covenants of September 28, 1966.

3. Whether the decision of the trial court that the sawmill constituted an industrial use of the appellant's lots; constituted annoyance and a nuisance to the other owners of property in the subdivision; was contrary to the restrictive covenants; and violated the rights of the other owners as determined under common law was correct.

4. Whether the trial court's decision that the sawmill was a private nuisance in the nature of a nuisance per accidens was correct.

5. Whether the trial court erred in refusing to apply certain asserted amendments to the restrictive covenants of September 28, 1966.

6. Whether the appellant was entitled to a jury trial.

7. Whether there was error on the part of the trial court in denying to the appellant his right to make a living for his family, the right to free enterprise, the right to sell or trade, and other rights secured under the Constitutions of the United States and the State of Wyoming.

On September 28, 1966, Johnson Cattle Company, Inc., by warranty deed, coveyed to William A. Meckem a tract of land containing approximately 67.62 acres situated in the southeast quarter and the northeast quarter of Section 15, T. 42 N., R. 108 W., 6th P.M., in Fremont County, Wyoming. On November 2, 1966, William A. Meckem filed in the office of the County Clerk of Fremont County an approved plat of the Riverview Park Subdivision which shows the tract of land divided into 23 lots ranging in size from 1.6 acres to 6.7 acres. At the same time Meckem filed in the office of the County Clerk of Fremont County a Statement of Restrictive Covenants to Run With Land, which by legal description described the same land as that included in the plat of Riverview Park Subdivision. The Statement of Restrictive Covenants to Run With Land declared that each of the lots is to be known as a 'residential lot' and restricted structures to not more than two detached single-family dwellings per lot. Paragraph five of the Statement of Restrictive Covenants to Run With Land provided as follows:

5. No obnoxious or offensive trade or activity or illegal practice of any kind shall be carried on upon any residential lot or any part thereof or in any building or structure or any part thereof, nor shall any activity be carried on which is or may become an annoyance or nuisance to the occupants of the adjoining or remaining residential lots in said development.'

Thereafter William A. Meckem sold all of the lots in Riverview Park Subdivision except for lots four, six, and seven. These sales occurred between November of 1966 and July of 1971. In April of 1968, there was prepared a document entitled Riverview Park Subdivision Amendment to Restrictive Covenants. ² At that time the only owners of lots within Riverview Park Subdivision were William A. Meckem and his wife (to the extent of whatever interest she may have had), William D. Carter and Mary E. Carter, Peter M. Richards and Betty E. Richards, and Johnson Cattle Company, Inc., a corporation. The record discloses, however, that this document never was executed by Peter M. Richards and Betty E. Richards.

Paragraph three of this document, purporing to amend the restrictive covenants reads as follows:

3. The paragraph numbered 1 of the earlier restrictions is amended such that it shall continue to apply as written to each and every lot in the Johnson WindRiver Subdivision excepting only however those lots numbered 8, 9, 5, 6 and 7, which face the U. S. Highway and as to those lots numbered 8, 9, 5, 6 and 7, no use thereof may be made excepting uses which are permitted as to all other lots and parcels in the subdivision, and also any legal business or enterprise may be operated thereon for gain or profit provided such legal business does not constitute a health hazard or a public nuisance, or a private nuisance as against any other lot or parcel in the subdivision and provided that the business premises shall at all times be kept in a neat, clean and orderly condition and manner, and provided further, in all events accumulative to all the other restrictions that no obnoxious, or loud or noisy, or offensive activities shall be carried on thereon or anything done thereon which may be or become an annoyance or nuiance to the neighborhood.'

On December 28, 1971, a quitclaim deed from William A. Meckem and his wife to Johnson Cattle Company, Inc., describing the entire tract previously conveyed by Johnson Cattle Company, Inc., to Meckem was recorded in the office of the County Clerk in Fremont County. In December of 1971 the only lots in Riverview Park Subdivision still owned by William Meckem were lots four, six and seven. The quitclaim deed was executed on September 28, 1966. Burke Johnson, the President of Johnson Cattle Company, Inc., testified that he had first seen the original of the quitclaim deed in December of 1971 when it was given to him by William Meckem. He recorded it shortly after he received it. On January 15, 1972, Johnson Cattle Company, Inc., conveyed to the appellant and his wife lots four, six, and seven of Riverview Park Subdivision.

The defendant testified that his occupation was that of a sawmill operator. He said that his sawmill operation began in March of 1972, which was approximately two months after he purchased the lots in Riverview Park Subdivision. This statement was clarified to show that he started moving the sawmill in during March of 1972, and that in 1973 he began operating his sawmill about the first of March. He had net money for the nine months of operation of 1973 of $6,700. He operated the sawmill about 15 days out of each30-day period, and, generally, that occurred between about 8:30 and 9:00 in the morning until somewhere between 4:30 and 6:00 in the evening.

Other persons who owned lots within the subdivision testified during the course of the trial about the appellant's sawmill operations. They described the usual debris associated with the operation of a sawmill including shavings, sawdust, slab piles, and machines and parts of machines on the premises. They testified about logs being brought to and stored upon the premises. They testified about the noise reaching to their property from the operation of the appellant's sawmill, and advised the court that they did not consent or agree to such operations.

On April 30, 1973, a letter was sent to the appellant from counsel for the appellees. The letter advised the appellant that the operation was in violation of the restrictive covenants for the subdivision, particularly paragraph 5, and set a 15-day period for the appellant to cease and desist the operation of the sawmill and remove the mill and machinery from his property. About one month earlier William Meckem had written a letter to the appellant at the request of other owners of lots within the subdivision. That letter advised the appellant that he was in violation of the covenants. Appellant's position in the trial of this case was that he had no actual knowledge of these restrictive covenants. In denying a Motion for Summary Judgment filed by the appellees the trial court ruled that the Statement of Restrictive Covenants to Run With Land was not properly acknowledged, and for that reason no constructive knowledge could be attributed to the appellant even though the instrument was recorded. Meckem testified that he had furnished copies of the restrictive covenants and the 'amendment' to the appellant. Other owners of lots within the subdivision testified that in the instance of their respective purchases Meckem had given them copies of these documents. Meckem also testified that, after his letter advising the appellant of the violations of the covenants, the appellant requested additional copies of the covenants from him stating that he had lost or misplaced his own. The appellant asserted that Meckem had told him the operation of his sawmill was permissible, but Meckem's recollection of that was that he understood the appellant was going to use the sawmill only to cut...