Piechowski v. Case, 12013

• Decision Date: 17 June 1977
• Docket Number: No. 12013,12013
• Citation: 255 N.W.2d 72
• Parties: James B. PIECHOWSKI et al., Plaintiffs and Respondents, v. Earl D. CASE et al., Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 72

255 N.W.2d 72

James B. PIECHOWSKI et al., Plaintiffs and Respondents, v. Earl D. CASE et al., Defendants and Appellants.

No. 12013.

Supreme Court of South Dakota.

Argued March 21, 1977.

Decided June 17, 1977.

John T. Porter, of Doyle & Bierle, Yankton, for plaintiffs and respondents.

Larry F. Hosmer, of Hosmer & Cody, Yankton, for defendants and appellants.

PORTER, Justice.

This case involves a restrictive covenant which is a part of a residential subdivision plat. To resolve the case we must interpret the covenant to determine whether certain uses now projected for the "Park and Commercial Area" of the plat by appellant subdividers violate the covenant and may be enjoined by respondents who are homeowners within the platted subdivision. We affirm the judgment granting respondents a permanent injunction.

In 1963 appellants ¹ platted "Riverside Acres" as a residential subdivision, with six blocks containing a total of ninety-six lots, and a "Park and Commercial Area" (see Appendix A). The subdivision is located about six miles from the City of Yankton, and is bounded on the south by the Missouri River. Appellants executed and made a part of the plat "Declarations of Restrictions and Covenants to Run with the Land" (hereafter Declarations) (see Appendix B). The Plat and Declarations were recorded in the Yankton County register of deeds office June 11, 1963.

Appellants have been selling lots in Riverside Acres since 1963. Since 1974 they have been constructing homes on unsold lots, then selling the developed lots. Respondents comprise approximately one-half of the homeowners in the subdivision.

The Declarations were amended in 1965 and again in 1967. Each time, the amendments were executed by all of the then lot owners, and by appellants, and were recorded in the Yankton County register of deeds office. The 1965 amendment changed Block 4 from mobile home or house trailers to single family residences. The 1967 amendment changed Block 5 from "construction and rental of cabins and /or motor courts" to single family residences, and further provided that the restrictions applicable to Blocks 4 and 5 should henceforth be identical to the restrictions applying to Blocks 1, 2, 3 and 6 as set out in the original Declarations (Appendix B). The specific provisions in the original Declarations relating to the "Park and Commercial Area" were unchanged by the 1965 and 1967 amendments. Although appellants still hold some lots for sale, all of the lots sold have been developed by the buyers in compliance with the Declarations, as amended. There is nothing in the record to indicate that any lot in Blocks 1 through 6 has been used other than for construction of a single private dwelling designed for and occupied by one family, as a residence.

In March, 1976 appellants replatted the "Park and Commercial Area", subdividing it into fourteen building lots and a lot "A" designated as a Park. As platted in 1963 the "Park and Commercial Area" is approximately twelve acres. The replatted Park (Lot A) is approximately two and one-fourth acres. No part of Lot A adjoins the Missouri River. That part of the "Park and Commercial Area" of the original plat which adjoins the river is replatted into building lots.

Appellants presented the replat to the county commissioners of Yankton County for approval and at the same time announced that they planned to sell the fourteen building lots as sites for four-unit apartments, duplexes, and some single family residences. Shortly thereafter respondents brought this suit and on July 12, 1976 the trial court entered the judgment from which this appeal is taken. The judgment, in pertinent part, enjoins appellants from "utilizing the Park and Commercial Area of Riverside Acres of Yankton County, South Dakota, for any purpose other than as a public park with concession type businesses thereon to serve the park users * * *." When the judgment was entered the "Park and Commercial Area" on the Riverside Acres Plat (Appendix A) was completely unimproved, contained a natural growth of trees, and was owned by appellants.

The Declarations (Appendix B) contain the following provisions expressly applicable to the "Park and Commercial Area":

"1. The area designated as Park and Commercial Area is to be used as a public park and for concession type commercial units. Space for said commercial units to be subject to either lease or sale."

Appellants main argument for reversal is that the Declarations are ambiguous as they pertain to the use of the Park and Commercial Area, particularly because the term "concession type commercial units" has no "clear and unequivocal, ordinary or popular meaning." They contend that the ambiguity should be resolved in favor of their right to the free use of their own property. ²

This case does not require that we determine and catalogue all possible uses permitted within the Park Area by the term "concession type commercial units." Such a pronouncement would be dictum. It is enough that we decide whether appellants' projected uses are not permitted. The alleged ambiguity is relevant only as it pertains to the precise fact issue before us, which is, may appellants subdivide the "Park and Commercial Area" and sell fourteen lots therein as sites for duplexes, four-unit apartments, and single family residences.

"Language is ambiguous when it is reasonably capable of being understood in more than one sense." Newton v. Erickson, 73 S.D. 228, 41 N.W.2d 545 (1950). Can the Declarations be reasonably understood as permitting appellants' projected use? In answering this question we consider the Declarations in their entirety, rather than just one part or provision. "A contract should be considered as a whole and all of its parts and provisions will be examined to determine the meaning of any part." Eberle v. McKeown, 83 S.D. 345, 159 N.W.2d 391 (1968). ³ To ascertain the intent and purpose of appellant subdividers, we look to the language which they employed in drafting the Declarations in 1963. It is clearly expressed that the restrictive covenants (Declarations) are adopted "(A)s a general plan for the benefit of said tract" (Riverside Acres). With the amendments of 1965 and 1967, each lot in the ninety-six lot subdivision is limited to single family residence.

Do the plat and Declarations show an intent by the subdividers that the "Park and Commercial Area" be an integral element of the comprehensive development scheme for Riverside Acres? As platted, the Park area adjoins the Missouri River. The subdivision is six miles from Yankton. A potential buyer of a lot in Riverside Acres could reasonably observe that the Park area is included as a part of the plat, that specific covenants as to the Park area are included in the Declarations which set out the complete development plan for "Riverside Acres," and that the Park area not only provides convenient access to the river along a platted street...