Joslin v. Pine River Development Corp.

• Decision Date: 30 December 1976
• Docket Number: No. 7462,7462
• Citation: 116 N.H. 814,367 A.2d 599
• Parties: Carl V. JOSLIN et al. v. PINE RIVER DEVELOPMENT CORPORATION and Pine River Association, Incorporated.
• Court: New Hampshire Supreme Court

Page 599

367 A.2d 599

116 N.H. 814

Carl V. JOSLIN et al. v. PINE RIVER DEVELOPMENT CORPORATION and Pine River Association, Incorporated.

No. 7462.

Supreme Court of New Hampshire.

Dec. 30, 1976.

Cooper, Hall & Walker and Donald F. Whittum, Rochester, for plaintiffs.

Lecomte, Shea & Dangora, Boston, Mass. (Philip R. Shea, Boston, Mass., orally), for defendant Pine River Development Corp.

Timothy J. Sullivan, Wolfeboro, by brief and orally, for defendant Pine River Association, Inc.

KENISON, Chief Justice.

This is an appeal from an order of the Superior Court (King, J.) granting a permanent injunction enjoining the defendants, their successors and all persons acting under their authority from using Lot $26 in the Scribner Park Subdivision at Pine River Pond in Wakefield, New Hampshire as a common boating or beach area, or a common ingress or egress to and from the beach. The defendants were also enjoined from using Lot $26 in any manner inconsistent with or in contravention of the restrictions in the deed conveying the lots on Pine River Pond. All exceptions were reserved and transferred.

The original developers, the Scribners, laid out forty-eight shore lots including Lot $26 and many more back lots which together constitute the Scribner Park Subdivision. They conveyed some of the shore parcels to the plaintiffs or their predecessors in title. The defendant corporation purchased Lot $26 and a large tract with no frontage. The corporation subdivided the large tract into 161 lots and sold 147 of them to various buyers, some of whom formed the defendant Pine River Association, Inc. The corporation conveyed Lot $26 to the association so that association members would have access to the water and could use the area for swimming, docking their boats, and for other recreational purposes. The land was conveyed because the owners of back lots 'ran into trouble' attempting to use other routes to the water. The defendants entered upon Lot $26 and cleared the land for the admitted purpose of making it a docking, beach and recreational area.

All of the deeds to the frontage lots including Lot $26 contain four restrictions limiting the number of cottages to be built on the lots, prohibiting mobile homes, requiring permanent buildings, finished exteriors, modern plumbing facilities and imposing set back requirements. Two other restrictions concern utility easements and drainage rights.

The defendants do not dispute that Lot $26 is subject to the six restrictions imposed upon the rest of the parcels of land in the subdivision. The parties disagree only upon the meaning or effect of those covenants. In determining whether the restrictions concerning the construction of a cottage on Lot $26 prevent the defendants from using the lot for common beach and boating purposes, we confront the general issue of whether restrictions on dwellings or residences limit the use of the land itself apart from any building. 5 R. Powell, Real Property § 673, at 158-62 (1968). The conclusions reached in cases posing this issue are so dependent upon the particular phraseology of the covenants involved that no sufficient general rules can be stated. Annot., Restrictive Covenants as Applicable to Land Itself Apart from Buildings, 155 A.L.R. 528 (1945).

The leading New Hampshire cases are Fournier v. Kattar, 108 N.H. 424, 238 A.2d 12 (1968), and Carroll v. Schechter, 112 N.H. 216, 293 A.2d 324 (1972). The defendants rely upon Carroll in which the land in question was part of a residential subdivision and was subject to protective covenants that regulated the type, height and location of structures and reserved certain rights of way. Not more than one single family residence could be placed on each lot. Neither the deed nor the plan, which was incorporated into the deed, explicitly stated that the land had to be used for residential purpose only. The defendant used part of one lot for a parking area. The master held that this use did not violate the restrictive covenants so long as no parking structures were built. After noting that similar cases reached opposite results under varying circumstances, see Annot., 80 A.L.R.2d 1258 (1961), we held that under the particular circumstances, the master's ruling was not erroneous as a matter of law.

According to the defendants, the proper rule of law to be applied in this case is that restrictive covenants are strictly construed to permit the free use of land, that all doubts must be resolved in favor of free use, and that no restrictions may be implied from those expressly stated. The defendants read Carroll v. Schechter, supra as adopting this rule of law and take the position that, if we affirm the trial court's injunction against using Lot $26 as a common beach and boating area, we will in effect overrule Carroll.

Carroll did not, as the defendants suggest, articulate any single narrow rule of law regarding the extent to which building restrictions limit the use of the land itself. We simply sustained the trial judge's interpretation and application of the covenants. See Fournier v. Kattar, 108 N.H. 424, 238 A.2d 12 (1968). This approach is consistent with the prevailing view that cases involving restrictive covenants present such a wide spectrum of differing circumstances that each case must be decided on its own facts. Edgewood Park Ass'n v. Pernar, 350 Mich. 204, 86 N.W.2d 269 (1957); Hanley v. Misischi, 111 R.I. 233, 302 A.2d 79 (1973).

The former prejudice against restrictive covenants which led courts to strictly construe them is yielding to a gradual recognition that they are valuable land use planning devices. 7 G. Thompson, Real Property § 3158 (J. Grimes ed. Supp.1976). In Traficante v. Pope, 115 N.H. 356, 358, 341 A.2d 782, 784 (1975), we noted that private land use restrictions 'have been particularly important in the twentieth century when the value of property often depends in large measure upon maintaining the character of the neighborhood in which it is situated.' They are particularly useful in the development of lake communities. Vogel, Lake Community Developments with Property Owners' Associations: Selected Problems for Lot Owners, 8 Urb.L.Ann. 169, 172 (1974). The modern viewpoint is that the former policy of strictly construing restrictive covenants is no longer operative. 7 G. Thompson, supra at § 3166 (J. Grimes ed. Supp.1976).

Even some of those courts that speak in terms of strict construction have mitigated the harshness of the rule. They give great weight to the intent of the parties and will not defeat the purpose for which the covenant was established. Stockdale v. Lester, 158 N.W.2d 20 (Iowa 1968); Hanley v. Misischi, 111 R.I. 233, 302 A.2d 79 (1973). All the surrounding circumstances existing at...