Holmes Harbor Water Co., Inc. v. Page

• Decision Date: 02 April 1973
• Docket Number: No. 1465--I,1465--I
• Citation: 8 Wn.App. 600,508 P.2d 628
• Parties: HOLMES HARBOR WATER CO., INC., a corporation, et al., Appellants, v. Thomas P. PAGE et al., Respondents.
• Court: Washington Court of Appeals

Page 600

8 Wn.App. 600

508 P.2d 628

HOLMES HARBOR WATER CO., INC., a corporation, et al., Appellants, v. Thomas P. PAGE et al., Respondents.

No. 1465--I.

Court of Appeals of Washington, Division 1, Panel Two.

April 2, 1973.

Harold E. Baily, Coupeville, for appellants.

Zylstra & Pitt, Richard L. Pitt, Oak Harbor, for respondents.

CALLOW, Acting Chief Judge.

This is an action brought by lot owners and a corporation to enforce a restrictive covenant regulating the height of structures built on lots within a plat known as Holmes Harbor Estates, Inc., Division No. 1, located on Whidbey Island, Washington. The plaintiffs sought an injunction requiring the defendant owners of a neighboring lot to remove or lower a roof that violated a height restriction limiting the height of any residence to 15 feet. The trial court found that the height restriction had been breached but denied the mandatory injunction requested. The lot owners challenge the findings of the trial court and its legal conclusions based thereon.

The plat for Holmes Harbor was approved on June 18, 1962, and restrictive covenants were recorded against the plat. In September, 1964, the restrictive covenants were amended to contain a restriction that 'No dwelling . . . shall exceed fifteen (15) feet in height.' These amendment were recorded on September 16, 1964. The defendants' predecessor in interest, a Ms. Kinzie, acquired the right to purchase the subject lot when she executed a real estate contract on September 15, 1964, which was recorded September 23, 1964. Title to the property was acquired from Ms. Kinzie, who gave the defendants a quitclaim deed which was recorded March 24, 1970. The warranty deed which Ms. Kinzie gave the defendants when she had fulfilled her contract and the quitclaim deed did not recite the restrictions. In any event, the defendant acknowledged that he knew of the height restriction when he purchased the property, but he was confused as to how it should be applied.

The trial court found that when the defendants' grantor contracted to buy the lot the restrictive covenant concerning height was not in force. He established that this height restriction was contained in the 1964 covenants which were defective, however, because they were improperly acknowledged and were not recorded until after the defendants' grantor contracted to purchase the property. The defendants built a 'chalet type' house on the property which exceeded the height limitation by approximately 2.6 feet when measured from the plaintiffs' claimed high point on the lot and by 4 inches when measured from the defendants' claimed high point on the lot. Further, it was found that the adjoining lot owners did not complain about the height of the house to the defendant until a substantial period after the house was completed. The trial court confirmed that the defendants did not intentionally violate the height restriction but made an effort to comply by excavating so the foundation top would be 3 1/2 to 4 feet below ground level. The defendants were found to have a right to rely and to have relied on the builder's representation that the house would not exceed 18 feet in height measured from the top of the foundation. The trial court also confirmed that the plaintiffs failed to prove monetary damages as a result of the building of the house and found instead that lot sales near the defendants' house had increased after it was built. Finally, the findings reflect that the cost of removing or remodeling the house would be extremely high compared to any benefit that the plaintiffs would receive from the removal or modification of the house. The trial court concluded that the issuance of a mandatory injunction was inappropriate.

The plaintiffs object to the dismissal of the action with prejudice, the award of costs to the defendants and the refusal to adopt their proposed findings and conclusions. The issues raised concern whether the lot is subject to the restrictive covenant; whether the covenant, though defectively acknowledged, was in effect; whether the covenant was intentionally violated; and whether the violation should be restrained without regard to equity. The record contains substantial evidence to support the findings of the trial court. Therefore, the findings are accepted as verities upon this appeal.

The granting or withholding of an injunction is addressed to the sound discretion of the trial court to be exercised according to the circumstances of the particular case. Grande Ronde Lumber Co. v. Buchanan,41 Wash.2d 206, 248 P.2d 394 (1952); Isthmian Steamship Co. v. National Marine Engineers' Beneficial Ass'n, 41 Wash.2d 106, 247 P.2d 549 (1952). An injunction does not issue to a petitioner as an absolute right and is granted only on a clear showing of necessity, State ex rel. Seattle Milk Shippers' Ass'n v. Superior Court, 130 Wash. 668, 228 P. 847 (1924), but if the essential elements of necessity and irreparable injury are proven, it is the court's duty to grant the injunction. Blanchard v. Golden Age Brewing Co.,188 Wash. 396, 63 P.2d 397 (1936). A trial court upon considering whether to grant or deny an injunction may recognize circumstances and weigh as equitable factors: (a) the character of the interest to be protected, (b) the relative adequacy to the plaintiff of injunction in comparison with other remedies, (c) the delay, if any, in bringing suit, (d) the misconduct of the plaintiff if any, (e) the relative hardship likely to result to the defendant if an injunction is granted and to the plaintiff if it is denied, (f) the interest of third persons and of the public, and (g) the practicability of framing and enforcing the order or judgment. Steele v. Queen City Broadcasting Co., 54 Wash.2d 402, 341 P.2d 499 (1959); 4 Restatement of Torts § 936 (1939).

Injunction relief against the breach of a restrictive covenant will be denied if the harm done to the defendant by granting the injunction will be disproportionate to the benefit secured by the plaintiff. 5 Restatement of Property § 563 (1944); 4 Restatement of Torts § 941 (1939). A mandatory injunction should not be issued where landowners fail to establish that they would suffer substantial damage if an obstruction is not removed. Nielson v. King County, 72 Wash.2d 720, 435 P.2d 664 (1967); McInnes v. Kennell, 47 Wash.2d 29, 286 P.2d 713 (1955).

In evaluating the exercise of discretion by the...