Kindler v. Anderson

Decision Date13 November 1967
Docket NumberNo. 3620,3620
Citation433 P.2d 268
PartiesJay Dee KINDLER and Janet Sue Kindler, husband and wife, Appellants (Plaintiffs below), v. Oscar V. ANDERSON, H. Waldemar Anderson, George Dewey Anderson, and Clarence P. Anderson, the known heirs of Augustus W. Anderson and Hannah Anderson, husband and wife, and all unknown heirs, devisees, assigns, and creditors of Augustus W. Anderson and Hannah Anderson, husband and wife, Appellees (Defendants below).
CourtWyoming Supreme Court

LaVoy O. Taylor, Kemmerer, for appellants.

Harry L. Harris, Evanston, for appellees.

Before HARNSBERGER, C. J., and GARY, McINTYRE, and PARKER, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiffs, as owners of Lots 12 and 13 in Block 2 of Hillcrest Park Addition to the Town of Evanston, Wyoming, commenced an action in the nature of a quiet title suit primarily to remove the restriction placed upon the property by the original grantors prohibiting the use of the premises for the sale of intoxicating liquors. The trial court denied the relief sought and plaintiffs appeal.

The case was presented below upon an agreed statement of facts. Briefly stated the facts pertinent to this appeal establish that on or before September 16, 1919, the original grantors as the owners of a vacant tract of land adjacent to the Town of Evanston, Wyoming, caused the said tract to be subdivided into town lots and blocks and duly filed of record a plat thereof, naming it Hillcrest Park Addition. No restrictive covenants accompanied the filing of the plat, but the deeds conveying the property here in question contained certain restrictive conditions-hereinafter more specifically set forth-with a right of reversion in the grantors, their heirs, successors, or assigns for conditions broken. In addition to the foregoing deeds conveyances were made by the original grantors of several lots now owned by some 23 persons which contained the conditions mentioned above, and while the agreed facts submitted to the trial court are not entirely clear, we note that no mention is made of the omission of the conditions in conveyances of the remaining property in the addition, so it may be assumed that all conveyances by the original grantors were made subject to the conditions.

While the portion of the deed containing the restrictions is somewhat lengthy, it seems desirable to set it forth verbatim, noting that for later convenience we have inserted in brackets a number for each of the four restrictions therein contained. It reads:

'To have and to hold the said herein granted lands and premises and all thereof upon the following express conditions, namely, that the said Grantees and each of them in accepting this deed covenant and agree with the said Grantors that neither the said Grantees or either of them nor any person claiming or to claim under them or either of them shall at any time within fifteen years from the date hereof (1) erect or cause to be erected any dwelling house building upon said lot unless said dwelling house building, exclusive of outbuildings, shall be of the reasonable worth and value of Twenty hundred dollars, (2) nor shall any such dwelling house building be erected within twenty feet of the front lot line of the lot whereon erected, (3) and neither said grantees nor any person claiming under them shall at any time sell, rent or otherwise dispose of said lands and premises or any part thereof to any person of Negro or Asiatic blood or descent, (4) and neither said grantees nor any person claiming under them shall at any time use, occupy or possess the said lands and premises or any part thereof for the purpose of selling intoxicating liquors thereon nor shall any such intoxicating liquor be sold thereon or on any part thereof by any person whatever, * * *' (As indicated above, the numbers in brackets have been supplied.)

It was also agreed that the lots here involved are adjacent to U. S. Highway 30 South and that 'there are other commercial buildings in a westerly direction from said lots and there is a business operating on the lots immediately to the east thereof,' and except for the foregoing all other lots in the said addition are presently being used and occupied 'for residential, county hospital, or church purposes only.'

By the stipulation the parties also submitted for determination of the trial court the following ultimate questions:

'a. Were the restrictions, and each of them, set forth in Exhibits A and B attached to plaintiffs' complaint intended to be in effect for a period of fifteen years only from the date of the execution of each instrument.

'b. Have the restrictions, and each of them, set forth in Exhibits A and B attached to plaintiffs' complaint been cancelled because of a change in the character of the neighborhood in which the lots in question are situated.

'c. Can plaintiffs' estate in lots 12 and 13 in Block 2 of the Hillcrest Park Addition to the Town of Evanston, Wyoming, be divested by their failure to observe any or all of the restrictions and conditions set forth in Exhibits A and B attached to plaintiffs' complaint and if so, which conditions or restrictions if violated, would authorize defendants or their successors in interest to terminate plaintiffs' estate therein.'

The trial court determined that restrictions (1) and (2) had terminated by reason of the time limitation specified in the deed; that restriction (3) was contrary to public policy and unenforceable and declared to be invalid; and that restriction (4) relating to intoxicating liquor was not limited in duration for the period of 15 years and was still effective. Judgment was entered accordingly.

As might be anticipated, the plaintiffs insist that the time limitation stated in the deed clearly applied to all of the restrictions, but contend further that in the event it is held that the time limitation did not apply to each and every restriction then restriction (4) has become inoperative because of a change in the neighborhood. Appellee, of course, contends to the contrary.

For convenience we first take up the arguments made with respect to plaintiffs' latter contention. As we view it, the effect of the trial court's ruling on this ultimate question was to hold that the contention was not substantiated by the facts stipulated, and with this we agree. Much more is involved than simply showing the presence in a residential neighborhood of a hospital, a church, and a few commercial properties. Those facts, standing alone, do not affect the validity of the restriction. Hevia v. Plam Terrace Fruit Company, Fla.App., 119 So.2d 795, 799. It is true, of course, that under certain circumstances it may be inequitable to enforce the restrictions (see 20 Am.Jur.2d, Covenants, Conditions and Restrictions, §§ 281, 282, pp. 842-849), but if plaintiffs were to prevail under the doctrine of 'change of neighborhood' it was incumbent upon them to develop the circumstnaces that would warrant its application.

Thus the pivotal question for determination here is whether or not the time limitation applies to all or only a part of the said restrictions. In this connection we point out that although the agreed statement recites that some 23 persons owning and using premises in the addition for residential purposes would intervene and resist plaintiffs' action, they did not do so and consequently their...

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  • BOARD OF COUNTY COM'RS v. Crow, No. 01-244
    • United States
    • United States State Supreme Court of Wyoming
    • March 26, 2003
    ...the "health, safety, morals and general welfare" of the people of Teton County. In support of this argument, Crow cites Kindler v. Anderson, 433 P.2d 268, 271 (Wyo.1967), where we said that covenants or other restrictive conditions placed in a deed to property, "... being in derogation of t......
  • Four B Props., LLC v. Nature Conservancy
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    ...claims the district court ignored the policy to construe restrictive covenants in favor of free land use. He cites Kindler v. Anderson , 433 P.2d 268, 271 (Wyo. 1967), for the proposition that restrictions on the use of land should be strictly construed in favor of free use of land. "Restri......
  • Kincheloe v. Milatzo, 83-100
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    • February 22, 1984
    ...court's analysis to be accurate and perceptive. When construing restrictions upon the free use of land, the rules of Kindler v. Anderson, Wyo., 433 P.2d 268 (1967), are applicable. In Kindler, we said: " * * * Restrictions upon the use of land, being in derogation of the common law, are not......
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    ...save the language included in the L63 Agreement)).65 Kincheloe v. Milatzo , 678 P.2d 855, 859 (Wyo. 1984) (quoting Kindler v. Anderson , 433 P.2d 268 (1967), and refusing to imply a covenant to a specific subdivision area, explaining the rule that "implied covenants are not favored in the l......
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