Kosel v. Stone

• Decision Date: 25 August 1965
• Docket Number: No. 10888,10888
• Citation: 404 P.2d 894,146 Mont. 218
• Parties: Joseph M. KOSEL et al., Plaintiffs and Respondents, v. Robert E. STONE and Mavis Stone, Defendants-Third, Party Plaintiffs and Appellants, v. Velma S. RAMIREZ et al., Third-Party Defendants and Respondents.
• Court: Montana Supreme Court

Page 894

404 P.2d 894

146 Mont. 218

Joseph M. KOSEL et al., Plaintiffs and Respondents, v. Robert E. STONE and Mavis Stone, Defendants-Third, Party Plaintiffs and Appellants, v. Velma S. RAMIREZ et al., Third-Party Defendants and Respondents.

No. 10888.

Supreme Court of Montana.

Submitted May 17, 1965.

Decided Aug. 25, 1965.

Sandall, Moses & Cavan, Valerie W. Scott (argued), Charles F. Moses (appeared), Billings, for appellants.

Neil S. Keefer (argued), Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

This ia an appeal by the defendants, Robert E. Stone and Mavis Stone, from a judgment entered in the district court of Yellowstone County which held that the Stones were bound by a declaration of restrictions which existed in the subdivision in which their property was located and that they may not utilize the property for any commercial use greater in scope than the use to which the property had been put since 1955.

From the record it appears that in 1954 the owners of certain lands then located outside the city limits of Billings, Montana, being about to sell a portion thereof to a corporation, entered into a declaration of restrictions with such corporation providing, among other things, that no lot in the subdivision to be platted was to be used for other than a residential purpose. The owners of the property subdivided it in accordance with legal requirements, filed the plat and in a matter of a few days thereafter filed the declaration of restrictions. Defendants admit there is a reference to the declaration of restrictions beside the notation of the subdivision plat in the Clerk and Recorder's Office. In September of 1954 the particular lots here in question were conveyed to the corporation, the deed containing this statement: 'This deed is given with covenants set forth in Sec. 74-110, R.C.M.1947, subject only to patent reservations rights of way and casements, building and use restrictions * * *.' Thereafter the property changed hands and in March of 1955 was conveyed to the defendants Stone, this deed containing no mention of any building and use restrictions and the defendants contended they were unaware that the declaration of restrictions existed.

The subdivision was annexed to the City of Billings in 1960. Stone is a plumber and has always used the garage on the property in connection with his plumbing business. In 1961 Stone decided to put his property to further commercial use and he and some neighbors petitioned the city council to rezone his lots 'commercial limited' and this was done on August 8, 1961.

Commencing about July 5, 1963, Robert E. Stone personally circulated among property owners in the subdivision a proposed agreement, seeking their signatures, which would in effect waive the residential requirement of the declaration of restrictions so far as the Stone property was concerned. Stone admitted that he did not mention to all the persons solicited for their signature that he intended to sell the property for use as a filling station; that it was possible that he mentioned he intended use of the property to be for an apartment house; a beauty shop, or barber shop. He did not secure the signatures of all owners of property in the subdivision and the proposed agreement was never executed.

Information getting around that Stones' property might become the site of a filling station, his neighbors brought this suit to have the declaration of restrictions declared valid and binding so that the Stones could not use the property for either his plumbing business or any other commercial purpose. Upon trial, plaintiffs consented that Stone could continue to use his garage for his plumbing business. The district court entered the judgment previously referred to.

The defendants specify that the court erred in ruling: (1) that the declaration of restrictions were covenants running with the land; (2) that the rezoning by the City does not relieve the property from the restrictions imposed by the declaration of restrictions; (3) that the evidence did not justify defendants' claim for equitable relief by reason of changes in the character of the neighborhood; (4) that the plaintiffs did not waive their right to bring this action by their failure to protest the utilization of defendants' property for a commercial purpose; and (5) that the court erred in denying defendants' motion to amend the judgment in their favor.

Turning to the first specification of error, defendants assert that under our statutes, sections 58-304 through 58-309, R.C.M.1947, inclusive, the only covenants that run with the land are those contained in a grant of real estate and must benefit the land. The declaration of restrictions here states it was intended to run with the land but defendants contend that since it was not contained in any grant of real estate it must be regarded as simply a contract between the original owners and the corporation.

We cannot agree with defendants in this respect. The declaration of restrictions was filed on February 10, 1954, and was on file in the office of the Clerk and Recorder of Yellowstone County prior to their purchase of the property; it was referred to beside the notation of the subdivision plat in that office. The defendants' deed describes the property as certain lots in the subdivision 'according to the official that on file in the office of the County Clerk and Recorder of said County, under Document #518848.' Document #518848 in the Office of the Clerk and Recorder of Yellowstone County is the plat of the subdivision, filed February 2, 1954.

Under our recording statutes these instruments constituted constructive notice of their contents to subsequent purchasers. Section 73-201, R.C.M.1947. Since defendants' deed described the property as being located in the subdivision according to the official plat on file, the official plat becomes as much a part of the deed as if fully incorporated therein, and the same situation applies to the declaration of restrictions. See 16 Am.Jur. Deeds, Sec. 273, p. 592.

Section 73-201, R.C.M.1947, was copied from California and that state still retains the same wording in section 1213, Cal.Civil Code, though some additional words have been added to their section which are not material here. Section 73-203, R.C.M.1947, was likewise copied from California and their Section 1215, Cal.Civil Code remains the same.

Our section 73-203, provides:

'Conveyances defined. The term 'conveyance,' as used in the two preceding sections, embraces every instrument in writing by which any estate or interest in real property is created, alined, mortgaged, or encumbered, or by which the title to real property may be affected, except wills.'

Under similar statute the Supreme Court of California in dealing with a like situation has stated:

'The further point made by respondents is that the respondents the Kinchlows did moy have either actual or constructive notice of the restrictions contained in said agreement. In support thereof respondents rely upon section 1213 of the Civil Code, which provides that every conveyance of real property properly and legally recorded is...