Papanikolas Bros. Enterprises v. Sugarhouse Shopping Center Associates, 13821

• Decision Date: 27 May 1975
• Docket Number: No. 13821,13821
• Citation: 535 P.2d 1256
• Parties: PAPANIKOLAS BROTHERS ENTERPRISES, a partnership, Plaintiff and Respondent, v. SUGARHOUSE SHOPPING CENTER ASSOCIATES, a partnership, et al., Defendants and Appellants.
• Court: Utah Supreme Court

Page 1256

535 P.2d 1256 PAPANIKOLAS BROTHERS ENTERPRISES, a partnership, Plaintiff
and Respondent,
v.
SUGARHOUSE SHOPPING CENTER ASSOCIATES, a partnership, et
al., Defendants and Appellants. No. 13821. Supreme Court of Utah. May 27, 1975.

Page 1258

Kennety W. Yeates and J. Rand Hirschi, Price, Yeates, Ward, Miller & Geldzahler, Wayne C. Durham and Hollis S. Hunt, Durham, Swan & Hunt, Salt Lake City, for defendants and appellants.

Edward J. McDonough and Michael R. Murphy, Jones, Waldo, Holbrook & McDonough, Salt Lake City, for plaintiff and respondent.

MAUGHAN, Justice:

Plaintiffs initiated an action against defendants for the enforcement of a restrictive covenant running with the land. The action proceeded against Sugarhouse Shopping Center Associates, a patnership; Spence Clark and James A. Collier, dba Financial Management Service, hereafter Associates; and the American Oil Company, a Maryland corporation, hereafter American. The complaints against the other defendants were dismissed prir to hearing testimony. From a judgment enforcing the specific covenant; awarding American judgment against Associates for expenses incurred by American in complying with the restrictive covenant; and awarding plaintiffs judgment against Associates for

Page 1259

expenses in the sum of $575 together with costs; defendants appeal.

In 1954, A. R. Curtis And Sons Company and the plaintiffs were developing a shopping center on various parcels of adjoining property which each owned individually, and some of which they desired to set aside for automobile parking. On March 24th of that year these two parties entered into an agreement which set aside portions of certain parcels owned by each, to be used for automobile parking. This agreement constituted a covenant running with the land, was recorded April 27, 1954, and did not terminate until December 31, 1999, unless sooner revoked by agreement. The subservient parcel with which we are here concerned can be described as the east 50 feet of the south 152.5 feet, of Block 6, Union Heights.

Some years later Associates became the successor in interest to A. R. Curtis And Sons Company; and on October 14, 1969, Associates entered into a lease with American, which encumbered the east 50 feet of the south 152.5 feet of Block 6, Union Heights. By agreement of these two parties a rider was attached to said lease wherein, American acknowledged awareness of the restrictive covenant, and provision was made for Associates to indemnify American, for losses incurred by American, should the restrictive covenant be enforced and American required to abandon or relocate its improvements on the subservient parcel.

Defendants make five assignments of error, which, in large measure, called to account the trial court's interpretation of the facts adduced at trial. This being a proceeding in equity we sit in review of the facts, as well as the application of the law. The assignments of error will be dealt with seriatim.

Balance of...