McColm v. Stegman

• Court: Kansas Court of Appeals
• Writing for the Court: Before FOTH; ABBOTT
• Citation: McColm v. Stegman, 596 P.2d 167, 3 Kan.App.2d 416 (Kan. App. 1979)
• Decision Date: 15 June 1979
• Docket Number: No. 49992,49992
• Parties: Robert D. McCOLM and Doris McColm, Appellees, v. James E. STEGMAN, Nancy Stegman, Lyle Kregar and Rhinda Bartlett, Appellants.

Page 167

596 P.2d 167

3 Kan.App.2d 416

Robert D. McCOLM and Doris McColm, Appellees, v. James E. STEGMAN, Nancy Stegman, Lyle Kregar and Rhinda Bartlett, Appellants.

No. 49992.

Court of Appeals of Kansas.

June 15, 1979.

Syllabus by the Court

1. Whether injunctive relief will be granted to restrain the violation of a restrictive covenant is a matter within the sound discretion of the trial court and is to be determined in light of all the facts and circumstances. Absent manifest abuse of that discretion, the appellate court will not interfere.

2. One who claims abuse of discretion has the burden of proving that contention and, when reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion.

3. A person who takes land with actual or constructive notice of restrictions upon it will not in equity and good conscience be permitted to act in violation thereof.

4. To warrant denial of equitable relief in an action to enforce a restrictive covenant, the change in conditions must be so great and radical as to neutralize the benefits of the restriction and destroy its purpose.

5. The rule that the right to enforce a restrictive covenant may be lost by laches, waiver or acquiescence is not an absolute one. Mere acquiescence will not bar enforcement so long as a restriction remains of any value or absent a showing that it would be inequitable to enforce the restriction.

6. In an injunction action directed against the violation of a restrictive covenant concerning the placement of mobile homes, it is Held that: Under all the circumstances, the trial court did not abuse its discretion in granting the injunction and ordering the mobile homes removed from the land.

Terry J. Malone and B. G. Larson, of Williams, Larson, Voss, Strobel & Estes, Dodge City, for appellants.

Harry A. Waite, Dodge City, for appellees.

Before FOTH, C. J., and ABBOTT and PARKS, JJ.

ABBOTT, Judge:

This is an action to enjoin the violation of a restrictive covenant. The sole issue in this case is whether the plaintiffs, Robert D. and Doris McColm, should be allowed to enforce a restrictive covenant prohibiting the location of mobile homes on the real estate in question. The defendants are James E. and Nancy Stegman, the landowners of the affected property, and their lessees, Lyle Kregar and Rhinda Bartlett. Each of the lessees owns a mobile home located on lots subject to the restrictive covenant. The defendants contend plaintiffs are barred by waiver, acquiescence or laches from enforcing the restrictive covenant. After hearing evidence, the trial court enjoined defendants against violation of the restrictive covenant and ordered the mobile homes removed from the property. The defendants appeal.

Although there is some confusion in the record concerning dates, the parties generally agree on the pertinent facts. In 1946, the plaintiffs acquired a quarter section of land along the west side of Bucklin, Kansas. In 1953, the one-block subdivision in question was platted and named "West Side Addition No. 1." The west and east halves of the block are divided by a north-south alleyway the length of the block. Lots therein are only 25 feet in width except for lot 12, which is 241 feet in width and is located on the southeast corner of the block. The odd-sized lot was donated by plaintiffs to the hospital district, which constructed a hospital thereon, and does not figure in this case. Plaintiffs built a home on the northeast corner of the block on lots 1, 2, 3 and 4, with the lots in question lying immediately south of plaintiffs' home on lots 5, 6 and 7. To the south of them lie lots 8, 9, 10 and 11, which were subsequently purchased by the hospital district and which have not been used for building purposes. The west side of the block is vacant except for one Mobile home on lots owned by a Mr. Ed Olemon directly across the alley from the lots alleged to be in violation. Olemon has had a mobile home on the lots since 1973, and at the time of oral argument the mobile home was still in place. Olemon was not named as a party to this action, and at the time of oral argument no action was pending against him to enforce the restrictive covenants. Plaintiffs did testify that if they are successful in this action they plan to institute an action against Olemon if he does not voluntarily move. All other lots in the block appear to be owned either by plaintiffs or the hospital district.

Prior to filing the plat in 1953, restrictive covenants were filed which prohibited structures or facilities for temporary residences and established a minimum number of square feet of floor space. The parties do not argue that mobile homes are not prohibited under the restrictive covenants.

In 1967 or 1969, lots 5, 6 and 7 were first used for a mobile home site. The plaintiffs presented testimony that in 1967, at the request of the hospital board, they installed utilities for a mobile home and rented the site to a hospital employee. They introduced bills for the utility installation cost and deposit slips for rent receipts. Plaintiffs testified the lots were first used for a mobile home site in 1969 and they gave their permission to the original occupant for that use on a temporary basis. They further testified that the local school board needed a music teacher and had located one who was satisfactory and who was willing to accept the job if a suitable location for a mobile home could be found. Although plaintiffs had sold lots 5, 6 and 7 several years before 1969, they consented to a mobile home being located on the lots. According to plaintiffs' testimony, a mobile home was first moved on the lots in August 1969 and remained thereon until May 1973, at which time the music teacher was employed by a different school district and moved the mobile home. In October 1973, a Mr. Fisher purchased the lots and his son installed a mobile home thereon about November 1, 1973. No permission to do so was requested by Fisher, and none was granted. Although plaintiffs were aware Fisher's mobile home was on the lots, they did not give express permission for that use to the Fishers or any subsequent occupiers of the lots, nor did they make their objection to such use known to any occupant until shortly before this suit was commenced. Olemon, who moved his mobile home across the alley in 1973, did not request permission, and none was granted. Fisher moved out of the mobile home in March 1976 and it remained empty until May of that year when it was sold and removed from the lot.

The lots were then sold to the defendants James E. and Nancy Stegman in July 1976. Stegmans received a quitclaim deed and an abstract of title. They did not have the abstract of title examined and subsequently testified that, although they knew the lot had previously been occupied by a mobile home, they were not aware of the restrictions. No one questions the fact that the restrictive covenants were properly recorded and imparted constructive notice. The Stegmans promptly moved a mobile home onto the lots and resided therein for over a year, at which time they sold the mobile home to the defendant Lyle Kregar but retained ownership of the land. Shortly thereafter, plaintiffs notified Kregar of the restrictions and of their intent to enforce the restrictions. Plaintiffs had learned that the Stegmans intended to rent out space for a second trailer to be placed on the lots, and that fact appears to have triggered their desire to enforce the covenant. The defendant Rhinda Bartlett leased space on the rear of the three lots and moved her mobile home onto the lots. Although Rhinda Bartlett moved her mobile home onto the lots after this action was commenced, Stegman testified he had leased the land to her prior to this suit having been filed.

The district court, in granting the injunction and ordering the mobile homes removed, found as follows:

"The court finds that it would be inequitable to permit the present use of the property for two trailer homes in view of the fact that the original agreement permitting the Kingsley family to move...