Moore v. White
| Decision Date | 04 March 1958 |
| Docket Number | No. 37782,37782 |
| Citation | 323 P.2d 352 |
| Parties | Marvin MOORE and Eugenia Louise Moore, husband and wife and Alvin A. Marshall and Wynema A. Marshall, husband and wife, Plaintiffs in Error, v. Kenneth L. WHITE and Margaret L. White, husband and wife, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Covenants restricting the use of real property, although not favored, will nevertheless be enforced by the courts, where the intention of the parties in their creation is clear, and the restrictions or limitations are confined within reasonable bounds. In construing such covenants, effect is to be given to the intention of the parties as shown by the language of the instrument, considered in connection with the circumstances surrounding the transaction and the object sought to be accomplished by the parties.
2. Where, in pursuance of a plan, a section or an addition is designated to be purely residential in character and, in order to make it more attractive as such, the use of the lots therein is by the terms of the plat and dedication restricted to residential purposes, held, such restriction is not unreasonable in contemplation of law.
3. Construction of a 40' by 80' garage of sheet iron, wood and concrete intended for storage of two grain combines, two trucks, one pick-up truck, a house trailer, a tractor, two plows, two fuel tanks on trailers and other farming machinery and equipment, all of which constitute the equipment used in the owner's business, held in violation of restriction of use of residential lots in subdivision or addition.
4. One who, with knowledge of building restrictions to which property is subject, has erected a building thereon which violated such restrictions, may properly be required by mandatory injunction to remove it.
5. A motion to dismiss appeal because the question has become moot will be denied when a decision and determination of the issues will determine substantial rights of the parties and relief can be granted.
Appeal from the District Court of Cotton County; Arthur J. Marmaduke, Judge.
Suit by Marvin M. Moore, Eugenia Louise Moore, Alvin A. Marshall and Wynema A. Marshall, as plaintiffs, wherein they seek to enjoin the defendants, Kenneth L. White and Margaret L. White, from constructing and using a large sheet iron storage garage in alleged violation of plat restrictions. Judgment for defendants and plaintiffs appeal. Reversed and remanded with directions.
Funston Flanagan, Walters, for plaintiffs in error.
Walter Hubbell, Walters, for defendants in error.
This is a suit wherein the plaintiffs, Marvin M. Moore and his wife, Eugenia Louise Moore, and Alvin A. Marshall and his wife, Wynema A. Marshall, sought to enjoin and restrain the defendants, Kenneth L. White and his wife, Margaret L. White, from constructing and using a certain contemplated building in alleged violation of plat restrictions of a certain addition in Walters, Oklahoma. The parties will be referred to as they appeared in the trial court.
The plaintiffs own and reside on the south half of a certain block in said addition. The defendants own and reside on the north half thereof. The recorded plot of said addition contains the following restrictions, among others, to-wit:
* * *
* * *
In the latter part of 1956, the defendants, who were farmers and also did custom combining of grain crops, commenced the construction, on their half block tract, of a building 40 feet by 80 feet for the purpose of storing the equipment used in conducting his business of custom combining which consisted of two combines, two trucks, one pick-up truck, a house trailer, a tractor, two plows, two fuel tanks on trailers and other farming machinery and equipment. The building was to be constructed of sheet iron, wood and concrete. On December 15, 1956, plaintiffs filed this suit seeking an injunction to prevent the completion of the structure or its use in the manner contemplated in violation of the restrictions above quoted. A trial was had to the court, without the intervention of a jury, and judgment was rendered for defendants. Plaintiffs have appealed therefrom.
The rule of interpretation of restrictive covenants, applicable in this jurisdiction, was stated in the case of Christ's Methodist Church v. Macklanburg, 198 Okl. 297, 177 P.2d 1008, as follows:
'Where, in pursuance of a plan, a section of an addition is designed to be purely residential in character and, in order to make it more attractive as such, the use of the lots therein is by the terms of the plat and dedication ...
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