Knudtson v. Trainor

• Decision Date: 02 March 1984
• Docket Number: No. 82-843,82-843
• Citation: 345 N.W.2d 4,216 Neb. 653
• Parties: Charles L. KNUDTSON et al., Appellants, v. Michael F. TRAINOR et al., Appellees.
• Court: Nebraska Supreme Court

Page 4

345 N.W.2d 4

216 Neb. 653

Charles L. KNUDTSON et al., Appellants, v. Michael F. TRAINOR et al., Appellees.

No. 82-843.

Supreme Court of Nebraska.

March 2, 1984.

Syllabus by the Court

1. Equity: Appeal and Error. On appeal to this court actions in equity are reviewed de novo on the record, subject to the rule that where credible evidence is in conflict on material issues of fact, this court will consider that the trial court observed the witnesses and accepted one version of the facts over another.

2. Restrictive Covenants. Covenants restricting the use of property are not favored in the law and, if ambiguous, will be construed in a manner permitting the maximum unrestricted use of the property.

3. Restrictive Covenants. Whether or not a particular use of residential property violates a restrictive covenant is a question of fact.

Jack G. Wolfe of Wolfe, Hurd & Rierden, Lincoln, on brief, for appellants.

Richard J. Butler of Ginsburg, Rosenberg, Ginsburg, Cathcart, Curry & Gordon, Lincoln, for appellees Trainor.

Michael G. Heavican, Lancaster County Atty., and Douglas D. Cyr, Lincoln, for appellees Lancaster County Office of Mental Retardation et al.

Debora D. Brownyard and Timothy F. Shaw, Lincoln, for amicus curiae Nebraska Advocacy Services for Developmentally Disabled Citizens, Inc.

Louis Michael Thrasher, of Mattson, Ricketts, Davies, Stewart, Calkins & Duxbury, Lincoln, for amici curiae Association for Retarded Citizens--Nebraska and Association for Retarded Citizens--Capital.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, and SHANAHAN, JJ.

WHITE, Justice.

The appellants, owners of a house and lot in the Trendwood Addition to the City of Lincoln, Nebraska, brought suit in the district court for Lancaster County against Michael F. and Marie Ann Trainor, doing business as Trainor Investments, the Lancaster County Office of Mental Retardation, the County of Lancaster, and the individual members of the Lancaster County Board of Commissioners. The purpose of the suit was to enjoin all defendants from entering into a lease from the Trainors to the office of mental retardation of a house and lot in Trendwood for the purpose of operating a group home for five mentally retarded persons.

The trial court refused to enjoin the execution of the lease and the operation of the group home, and dismissed the petition. Appellants, Charles L. and Esther Knudtson, appeal. We affirm.

Although there are several assignments of error, the decisive issue is whether the restrictive covenants binding on all owners of lots in Trendwood prohibit the operation of a group home in the addition.

The restrictive covenant at issue states: "1. No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height, and a private garage."

Two questions present themselves in an analysis of this provision as related to the factual situation here under consideration: (1) Is the operation of a group home a "residential" use? (2) Does the phrase "single family dwelling" describe an architectural style, or is it a description of the relationship of the persons occupying the structure?

We approach the analysis with the caveat that covenants which restrict the use of land are not favored by the law, and, if ambiguous, they should be construed in a manner which allows the maximum unrestricted use of the property. Ross v. Newman, 206 Neb. 42, 291 N.W.2d 228 (1980).

We review this matter de novo, taking into consideration the superior position of the trial judge as to credibility of witnesses where there are factual disputes. Gerberding v. Schnakenberg, 216 Neb. 200, 343 N.W.2d 62 (1984).

In our review we accept the version of the facts as found by the trial court: "4. The five mentally retarded women who will be living in the proposed group home will share the common areas of the house, the living room, dining room and recreation room and they will prepare and eat their meals together. They will live in the proposed group home with their houseparents and will be taught the skills which are normally taught and performed in a residence such as taking care of the house, cleaning, preparing meals and money management.

....

"6. ... This proposed group home is not a half-way house but is a permanent residence intended to allow these five retarded women to lead fuller and more normalized lives in the community than would be possible in an institution."

At issue in Reed v. Williamson, 164 Neb. 99, 82 N.W.2d 18 (1957), was the enforceability of a clause in a document entitled "RESTRICTIVE COVENANTS" and signed by all owners of an addition to Kimball, Nebraska. The clause provided that " '[a]ll of the lots in said Addition shall be exclusively a residential area ....' " Id. at 102, 82 N.W.2d at 20. The court then construed the clause against defendants who proposed to drill oil and gas wells on lots whose use was restricted.

In considering the meaning of the word "residential," this court in Reed, supra at 107-08, 82 N.W.2d at 23, quoted with approval from Jernigan v. Capps, 187 Va. 73, 45 S.E.2d 886 (1948): " 'It is not necessary that we go to a dictionary or a law book to ascertain the meaning of "a residential building." Giving the words their plain and ordinary meaning, we would say that such a building is one which is used for residential purposes,--that is, one in which people reside or dwell, or in which they make their homes, as distinguished from one which is used for commercial or business purposes. But if the obvious must be supported by authority or judicial precedent, we find that they are of the same view. Webster's New International Dictionary, 2d Ed., defines "residential" as: "Used, serving, or designed as a residence or for occupation by residents; * * *. Adapted to, or occupied by, residences; as, a residential quarter." ' "

No evidence was introduced that could support a finding that the proposed use of the residence as a group home involved the operation of a business or commercial enterprise as those terms are commonly understood. Cases in accord with the view we take here, that the operation of a group home is a residential purpose within the meaning of a covenant that the property shall be used only for residential purposes, are: Hobby & Son v. Family Homes, 302 N.C. 64, 274 S.E.2d 174 (1981); Linn County v. City of Hiawatha, 311 N.W.2d 95 (Iowa 1981); Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn.1981); Berger v. State, 71 N.J. 206, 364 A.2d 993 (1976); Crowley v. Knapp, 94 Wis.2d 421, 288 N.W.2d 815 (1980).

Holding, as we do, that the group home is a use permitted under the "residential purposes" portion of the covenant, we proceed to a discussion of the second question.

Although no Nebraska case appears to have discussed the issue of the implications of the words "single-family dwelling," other states have done so. The trial court discussed those cases in its order, and we adopt the language...