Higdem v. Whitham

• Decision Date: 13 June 1975
• Docket Number: No. 12873,12873
• Citation: 167 Mont. 201,536 P.2d 1185
• Parties: Elmer HIGDEM and Verda Higdem, husgband and wife, Plaintiffs and Respondents, v. William R. WHITHAM and Jung Yul Whitham, husband and wife, Defendants andAppellants.
• Court: Montana Supreme Court

Page 1185

536 P.2d 1185

167 Mont. 201

Elmer HIGDEM and Verda Higdem, husgband and wife, Plaintiffs and Respondents, v. William R. WHITHAM and Jung Yul Whitham, husband and wife Defendants andAppellants.

No. 12873.

Supreme Court of Montana.

Submitted May 9, 1975.

Decided June 13, 1975.

McGarvey & Moore, Kalispell, James D. Moore, argued, Kalispell, for appellants.

Fennessy, Crocker & Harman, Libby, David W. Harman, argued, Libby, for respondents.

JOHN C. HARRISON, Justice.

This is an appeal by defendants William R. Whitham and Jung Yul Whitham from an order and judgment entered in the district court, Lincoln County, holding that a garage built by the defendants violated certain restrictive covenants and ordering the garage removed. The matter was tried by the court, sitting without a jury.

The matter was presented to the trial court on these agreed facts:

'That plaintiffs (Elmer Higdem and Verda Higdem) and defendants are neighbors and owners of adjacent lots of real property in Mountain View Park, a subdivision in Lincoln County, Montana, which is located approximately one-half mile north of Libby, Montana. Plaintiffs are owners of Lot 1, Block 6 of Mountain View Park. Defendants are owners of Lot 2, Block 6 of Mountain View Park. Plaintiffs' lot is bordered on two sides by dedicated streets, in the rear by an alley and to the west by defendants' lot. Defendants have frontage on a dedicated street, an alley to the rear, plaintiffs to the east and by McGlumphys, not parties to this action, to the west. That Lot 1 and Lot 2 of Block 6 Mountain View Park owned by plaintiffs and defendants, respectively, are subject to certain restrictive covenants of record at Book 109 Page 155 Book of Deeds at the office of the Lincoln County Clerk and Recorder * * *.

'* * *

'That on or about April 24, 1974 defendants commenced construction on a garage addition on their lot, which garage is 34 feet wide, 38 feet deep and its maximum height will be approximately 15 feet 9 inches. The garage addition will contain three garage doors and will be attached to the dwelling located on the lot. All of the pertinent lots are 50 feet wide by 125 feet deep.

'That the plaintiffs and defendants share a well system, that the well system is enclosed above the surface of the ground; that the water source is approximately forty-two (42 ) beneath the surface of the ground.

'That the defendants at one time inquired among neighbors into the efficacy of performing occasional small mechanical jobs, such as tune-ups, within the garage structure and was informed by neighbors that they would object to such a use of the said garage structure.

'That the garage in question does not encroach upon property belonging to the plaintiff.'

The restrictive covenants referred to in the agreed statement of facts in pertinent part state:

'1. The purchasers, as to the said lots of land hereby conveyed, and with intent to bind all persons in whom the said lots hereby conveyed shall for the time being be vested, but not so as to be personally liable under this covenant after having parted with the said lots, for themselves and their heirs and assigns hereby covenant with the sellers and their assigns as follows:

'a. Not to erect any building other than a single detached dwelling house, either with or without a garage or other like and necessary outbuilding, upon the said lots of land hereby conveyed, or any part thereof.

'b. Not to erect or suffer to be erected upon said lots of land hereby conveyed any dwelling house at a cost of less than $10,000.00, such cost to be calculated upon the net cost of labor and material alone, estimated at prices now current.

'c. Not to use any building to be erected upon said lot of land hereby conveyed or any part thereof, for any purpose other than those incident to the use of a private dwelling house only; this provision being intended to prohibit the use of any housing for livestock or poultry, or for any commercial purpose, provided, however, that nothing herein is intended to prohibit use of any such building for private workshops, greenhouses or other like purposes.'

With the agreed statement of facts and covenants before it, the trial court heard the testimony of plaintiffs and defendants and that of one Glenn Mueller, a neighbor.

Defendant William Whitham testified that he had purchased the property several years ago and at that time had considered taking odd jobs when he got the garage built, but he encountered such opposition from neighbors that he abandoned that idea and had so informed his neighbor; that the one car garage that came with the house was inadequate for his use and that of his family, a wife and three children, who between them owned three compact station wagons, two pickups, a Suzuki motorcycle, and two trail Hondas; that one of the reasons for building a large garage was to furnish storage for the vehicles, tools, lawn equipment, extra tires and firewood; that after building the garage he converted the old one car garage into a den. Whitham's wife testified essentially the same as her husband.

Plaintiff Elmer Higdem, a local automobile dealer, testified that he and his family had lived in the addition over ten years; that shortly after defendants moved in Bill Whitham told him of his intent to build a garage and he might do odd jobs in it as a mechanic; that he told Whitham he would object to any such commercial work; that as to the garage, he would not have objected to a two stall garage but when he saw the size of the actual garage defendant was building, he objected and filed a complaint on the basis that the building violated the restrictive covenants, and interfered with his easement of light and air. Plaintiff Verda Higdem's testimony concerned an exhibit she had prepared of the plats in question.

The testimony of Mueller, a neighbor, concerned the fact that defendant had earlier discussed building a new garage with him and that he was considering taking small mechanical jobs at his home.

The trial court made nine findings of fact, none harmful to defendant and then concluded:

'1. The garage addition is in violation of the restrictive covenants in that defendants already had an attached garage on said property; and is not a necessary outbuilding.

'1a. That the additional building, its size and the purpose intended are in violation of the restrictive covenants.

'2. That said construction apparently will not result in adversly affecting the water system.

'3. That said garage addition does not violate any zoning regulations or City Ordinances, since none are now in existence.

'4. That defendants should remove said garage addition from the premises due to defendants' violating the restrictive covenants.

'5. Plaintiffs are entitled to their costs.'

Defendants appeal and present two issues for review:

1. Are the district court's conclusions of law supported by the findings of fact?

2. Did the district court err in construing the language of the restrictive covenants so as to prohibit the construction of defendants' garage?

Regarding issue No. 1, we find the conclusions of law, if that they are, are not supported by the court's findings of fact. Conclusions 4 and 5 simply state the defendants should remove the garage and pay plaintiffs their costs. These, we believe, are remedies, not proper conclusions.

After the trial court's decision, defendants moved for a new trial, but this was denied by the trial court. Under Montana's Rules of Civil Procedure, the proper procedure would have been to proceed under Rule 52(b), M.R.Civ.P.

The trial court's findings and conclusions are inconsistent. From the court's conclusions it would appear the order for removal of the garage must have been based on its conclusion 1a:

'That the additional building, its size and the purpose intended are in violation of the restrictive covenants.'

However, no reference is made to a specific covenant and none of the covenants relate to construction, existence, or size of any buildings on the land. Covenant 'c' only relates to the use of the land and the use of the structures. The only language in covenant 'a' which in any way might relate to...