McDonough v. W. W. Snow Const. Co., Inc.

• Decision Date: 05 June 1973
• Docket Number: No. 176-72,176-72
• Citation: 131 Vt. 436,306 A.2d 119
• Parties: Richard A. McDONOUGH et al. v. W. W. SNOW CONSTRUCTION CO., INC.
• Court: Vermont Supreme Court

Page 119

306 A.2d 119

131 Vt. 436

Richard A. McDONOUGH et al. v. W. W. SNOW CONSTRUCTION CO., INC.

No. 176-72.

Supreme Court of Vermont.

June 5, 1973.

Motion for Reargument Denied June 27, 1973.

Kolvoord, Overton & Wilson, essex Junction, for plaintiffs

Eric A. Shuppin, Essex Junction, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

The plaintiffs are residents and homeowners in a development located in Colchester, known as Laurel Hill North. They seek an injunction pursuant to V.R.C.P. 65 to enjoin further construction of a two-story 'All houses constructed westerly of Biscayne Heights will be restricted in height to one story, and shall have a roof pitch not to exceed four and one half inches in twelve inches.'

house in the development by the defendant and to require the removal of the second story. They also seek to enjoin similar construction on adjacent lots owned by the defendant. The plaintiffs based their action on a restrictive covenant imposed on the land which provides:

The matter was tried by court, and findings of fact and conclusions of law were made. Pursuant to these, the lower court ordered the defendant, W. W. Snow Construction Co., Inc., to be permanently enjoined from any further construction of the second story and ordered it to be removed no later than sixty days from the signing of the order. The court also established the grade on the lots owned by the defendant to be the grade as it then existed and ordered that no buildings may be constructed on the lots that exceed one level or story. Soon after, a motion to reopen the judgment was filed by the defendant. That motion was denied, and the defendant has brought this appeal.

At the time the plaintiffs purchased their lots from North Star Corporation, all of the lots in Laurel Hill North were subject to restrictive covenants of which the above-described covenant was one of them. The purpose behind the above-described covenant was to preserve the scenic beauty of the area, and, in particular, to protect a view of Lake Champlain and the Adirondack Mountains lying beyond.

In June, 1971, the defendant purchased four lots in Laurel Hill North from the North Star Corporation. At that time the defendant, through its president and duly authorized agent, was fully aware of the restrictive covenants imposed upon the land. Reference to these covenants was made in the deed from North Star Corporation to Snow Construction.

Laurel Hill North is set on the edge of Lake Champlain. The plaintiffs' residences, with the exception of plaintiff McDonough, are erected on a height of land known as Biscayne Heights which drops off rather sharply to the west to a flat area that stretches westerly to Lake Champlain. The elevation of the lots on Biscayne Heights falls away from the street in a direction towards the lake, and as a result, the residences are built into the bank; thus showing one level or story from the street, but showing two levels or stories from the rear. The average measurement of the first floor of these houses from the grade level on the street side is approximately 32.97 inches.

During 1972, the Snow Construction Company commenced construction of a house located on one of the lots located on the flat area west of Biscayne Heights. The first level or story of the house constructed by the defendant is even with the present grade of the lot and consists of a cement slab with partial cement block walls and partial wood walls. The first level or story rises to a height of seven feet, six inches above grade. In addition, the defendant was in the process of constructing a second level or story for living purposes on top of the first story before this action was commenced.

After the defendant commenced construction of the two-story house, its president, Walter Snow, attended a conference during which he admitted knowledge of the restrictive covenants, but stated the covenants were no problem to him and he intended to proceed with the construction of this house and others of a similar nature on the other lots.

The house constructed by the defendant is not built into a bank, and the existing grade around the house at the time of the suit was approximately level. However it was the defendant's intention to partially fill above the grade level around the house so at least a portion of the second level would not be more than 32.97 inches above The issues brought to this Court for our determination are:

the new grade. Assuming the roof pitch of the defendant's house was four and one-half inches in twelve, it would still be at least one to two feet higher than other houses on the lake shore and would obstruct the view of the lake from a number of the plaintiffs' residences.

I. Whether the restictive covenant at issue in this case is a restriction on the height of a house rather than a restriction on the number of stories of a house.

II. Whether the plaintiffs are precluded from requiring a literal application of the restrictive covenant to the defendant because of the way they have constructed their homes.

III. Whether the plaintiffs are entitled to relief in the form of removal of the second level of the house or money damages.

IV. Whether the defendant is entitled to a discretionary ruling to grant it a new trial.

It has been recognized in this state that restrictive covenants are enforceable in equitable actions, as the court will protect an established legal right.

The most recent Vermont case involving a restrictive covenant was Welch v. Barrows, 125 Vt. 500, 218 A.2d 698 (1966). In Welch, the plaintiff brought an action in the old Court of Chancery seeking an injunction to enforce a restrictive covenant which provided no buildings were to be constructed in a certain area of Kimball's Point. In seeking to enforce the restrictive covenant, the plaintiff sought the removal of three cabins on the defendants' land; however, the controlling issue in the case was the area in which the restrictive covenant applied. From the court's discussion in Welch of the conditions which give rise to the enforceability of restrictive covenants, the principles governing their enforcement may be ascertained. Basic to the enforcement of restrictive covenants is that they are enforceable through the equitable relief afforded by an injunction. Id., 125 Vt. at 502, 218 A.2d 698. See also Queen City Park Association v. Gale, 110 Vt. 110, 3 A.2d 529 (1938). Because the court is enforcing an established legal right, the relative hardships to the parties has no application to the award of final relief to the plaintiff. Welch v. Barrows, supra, 125 Vt. at 508, 218 A.2d 698.

In passing upon what the parties have decided to enforce, the agreement must be construed so as to give effect to the intention of the parties if it can be gathered from the language used when interpreted in connection with, and in reference to, the subject matter and purpose sought to be accomplished at the time the instrument was executed. Welch v. Barrows,supra, 125 Vt. at 504, 218 A.2d 698. This principle is illustrated in Latchis v. John, 117 Vt. 110, 85 A.2d 575, 32 A.L.R.2d 1203 (1952), where the court denied an injunction on the basis that a restrictive covenant providing no gas station or public garage shall be maintained on the lands did not encompass a fruit stand maintained on the lands by the defendant.

Another principle to be considered in the enforcement of restrictive covenants is that by virtue of appearing in the deed the defendant knew or should have known of the restrictive covenant, and under such circumstances the defendant acted at its own peril without first obtaining a resolution of the covenant. Welch v. Barrows, supra, 125 Vt. at 508-509, 218 A.2d 698. Moreover, he who takes land with notice of such a restriction will not in equity and good conscience be permitted to act in violation of the restriction. Welch v. Barrows, supra, 125 Vt. at 509, 218 A.2d 698. Queen City Park Association v. Gale, supra, 110 Vt. at 118 85 A.2d 575.

Applying these principles to the case at bar, it is quite apparent the plaintiffs sought an injunction to enforce a restrictive Restrictive covenants limiting the height of houses to one story have been held to be enforceable for the purpose of protecting a view. The closest Vermont case to that at bar appears to be Fuller v. Arms, 45 Vt. 400 (1873), where what the court characterized as a restriction in a deed, rather than a covenant, limited construction on the lot to a dwelling house and outbuildings for the same. The grantor of the lot lived across the road and enjoyed a view from above the lot which he did not want obstructed after he sold it. The eventual purchaser of the lot brought an action to have the restriction set aside, and the court refused, saying at pp. 407-408 that a view may be protected as any other interest.

covenant which imposes limitations upon the very activity in which the defendant sought to engage. Moreover, the defendant knew of the restrictive covenants and still proceeded in the erection of the house without obtaining a resolution of the disputed rights.

In an action between adjacent landowners, the court in King v. Kugler, 197 Cal.App.2d 651, 17 Cal.Rptr. 504 (Dist.Ct.App.1961), enforced a restrictive covenant limiting single family dwellings to not more than 'one story in height' when it enjoined the defendant from constructing a garage with room overhead. In enforcing the restrictive covenant, the court found the purpose of the covenant to be to protect the view, and in addition, found nothing vague, ambiguous, or uncertain in the meaning of the restrictive phrase. Id., 17 Cal.Rptr. at 507-508. Cf. Seligman v. Tucker, 6 Cal.App.3d 691, 86 Cal.Rptr. 187, 191-192 (1970).

A restrictive covenant forbidding the erection of 'more than one single story dwelling' was enforced by the court in Snashall v. Jewell, 228 Or. 130, 363 P.2d 566 (1961), when it...