King v. Kugler

• Decision Date: 04 December 1961
• Parties: , 92 A.L.R.2d 872 Walter F. KING and Dorothy M. King, Plaintiffs, v. Robert L. KUGLER, Jr., Irene Kugler, Defendants. Civ. 25708.
• Court: California Court of Appeals Court of Appeals

Page 504

17 Cal.Rptr. 504

197 Cal.App.2d 651, 92 A.L.R.2d 872

Walter F. KING and Dorothy M. King, Plaintiffs, v. Robert L. KUGLER, Jr., Irene Kugler, Defendants.

Civ. 25708.

District Court of Appeal, Second District, Division 1, California.

Dec. 4, 1961.

Robert C. Pannell, Torrance, for appellants.

Raymond L. Winters, Redondo Beach, for respondents.

LILLIE, Justice.

Appeal is taken from a judgment enjoining defendants from building any structure of a height exceeding that of a single story dwelling presently on the premises.

The following factual background is taken from an Agreed Statement. Plaintiffs and defendants reside in adjacent houses built in a 174 lot tract by the original grantor, Allied Gardens Corp. Both parties purchased their homes from Allied in 1952. Prior thereto, the original grantor recorded a Declaration of Conditions and Restrictions, the terms of which applied to all lots in the tract; the deeds thereafter given to the 174 lot owners, including the parties herein, were made subject thereto. Although they did not recite the individual restrictions and conditions contained in the Declaration, the deeds were made specifically subject to 'covenants, conditions, restrictions, reservations, easements, rights and rights of way of record,' and therein expressly so stated. The restriction in question contained in the Declaration, and of record, provides: '2. That no structures shall be erected, altered, placed or permitted to remain on any residential building plot other than one detached single family dwelling not to exceed one story in height and a private garage for not more than three cars, together with the customary fences, walks and out buildings incidental to residential use;' and under paragraph 13, '(e)ach and all covenants and conditions' contained therein shall 'run with the land, and shall be binding on all parties.' Later defendants obtained a building permit from the City of Torrance to build a garage with a room overhead, and began construction. The proposed structure was to have a garage floor and ceiling and, above the garage, a room with a floor and ceiling. Plaintiffs, contending that the building exceeded 'one story in height' in violation of Condition 2, brought the within action for injunctive relief.

The trial court found that Allied Gardens Corp. had recorded the Declaration applying to all lots including 40 and 41 prior to their sale; that defendants had constructive notice of the Declaration; that defendants' lot 41 is at a lower level than plaintiffs' lot 40; that there was an extensive view from plaintiffs' lot, important to the property and of immeasurable value to plaintiffs, and they relied on the restrictions for the preservation of their view when they purchased the property that the proposed structure would impair plaintiffs' view; that defendants' plans for construction appear to be in conflict with Condition 2 in that the contemplated addition would embrace a structure of more than one story in height.

Appellants, arguing that building restrictions are strictly construed since there are public policies in favor of the free use of land and such restrictions must be certain and clear before they can be enforced by injunctive proceedings (Wing v. Forest Lawn Cemetery Ass'n, 15 Cal.2d 472, 101 P.2d 1099, 130 A.L.R. 120; Werner v. Graham, 181 Cal. 174, 183 P. 945), contend that the phrase used in Condition 2 'not to exceed one story in height,' is too uncertain to support injunctive relief. Admitting '(t)he conceded purpose of the height restriction in this case was to preserve an upper owners' view,' appellants also submit, somewhat obscurely and without argument or citation of authority, that the 'restriction fails to spell out this intent.' (A.O.B., p. 3.)

The Declaration recorded by the grantor sets up a comprehensive and uniform plan of restrictions for the improvement of the entire tract and for the benefit of each lot and its owner. The document expressly declares that the restrictions and conditions contained therein shall 'run with the land and shall be binding on all parties' (Condition 13), apply to all lots in the tract and be mutually enforceable, reflecting a specific intent to create enforceable restrictions. (Gamble v. Fierman, 82 Cal.App. 180, 255 P. 269; Martin v. Holm, 197 Cal. 733, 242 P. 718.) That the restrictions and conditions contained in the Declaration of record apply, as therein provided, to all lots in the tract and were expressly carried into the deeds, is found in the language of each deed wherein the conveyance is specifically made subject to 'covenants, conditions, restrictions, reservations, easements, rights and rights of way of record.' (Smith v. Rasqui, 176 Cal.App.2d 514, 1 Cal.Rptr. 478.)

The general purpose of restrictions and conditions is ordinarily expressed in the instrument creating them. In the instant case the language of the Declaration reflects the clear intent and desire of the grantor, for the improvement of the entire property and for the benefit of each lot and its owner, to formulate a common plan--to confine the land to residential purposes exclusively (Condition 1), specifically restricting the structures to single family dwellings not to exceed one story in height, three car garages and incidental out buildings (Condition 2) and fences, walls, et cetera, of a certain height (Condition 10); and the instrument so states. It also requires, in order to enforce this common plan, approval by a committee of all building and alteration plans for conformity and harmony of external design with 'existing structures' and 'as to location of the building with respect to topography and finished ground elevations.' (Condition 3.) The language of the deeds referring to the conditions and restrictions of record and the recorded Declaration containing the same, makes it clear that the lots conveyed were subject to the common plan set forth therein. (Weston v. Foreman, 108 Cal.App.2d 686, 239 P.2d 513; Kent v. Koch, 166 Cal.App.2d 579, 333 P.2d 411.)

Although the instrument does not expressly declare the intent of the grantor to preserve the view of lot owners, it is obvious from the language used, the topography and the finished ground elevations of the tract and the general physical appearance of the land and the existing structures thereon, that the purpose of the height restriction in the plan is to protect the lot owner's view from one elevation to another. Any suggestion that its purpose was, instead, to prevent the construction of multiple family dwellings or apartments, is not well taken for other restrictions in the Declaration expressly confine the use of the land to 'residential purposes exclusively' (Condition 1) and the lots specifically to 'one detached single family dwelling.' (Condition 2.) (See discussion in Weber v. Graner, 137 Cal.App.2d 771, 291 P.2d 173.)

Contrary to appellant's claim, we see nothing vague, ambiguous or uncertain in the meaning of the restrictive phrase 'one story in height,' or as to what was intended thereby. It does not appear, nor have appellants contended, that the words have a technical, special or peculiar meaning; they merely argue that to control the height the grantor 'should' have inserted a limit in feet and inches or other language from which the intended maximum height could have been inferred exactly. Therefore, the phrase is to be interpreted in its ordinary and popular sense rather than according to some strict legal or technical meaning. "This ordinary and popular sense is to be related to the circumstances under which the words are used, having in mind the purpose...