Reading v. Keller, 37867

• Decision Date: 07 October 1965
• Docket Number: No. 37867,37867
• Citation: 67 Wn.2d 86,406 P.2d 634
• Court: Washington Supreme Court
• Parties: F. Whitmore READING and Ann D. Reading, husband and wife, Respondents, v. Robert H. KELLER and Gladys Keller, husband and wife, Appellants.

Page 86

67 Wn.2d 86

406 P.2d 634

F. Whitmore READING and Ann D. Reading, husband and wife, Respondents, v. Robert H. KELLER and Gladys Keller, husband and wife, Appellants.

No. 37867.

Supreme Court of Washington, Department 1.

Oct. 7, 1965.

Rehearing Denied Dec. 3, 1965.

O'Leary, Meyer & O'Leary, Ernest L. Meyer, Olympia, for appellants.

Parr & Baker, William Lee Parr, Olympia, for respondents.

OTT, Judge.

April 17, 1940, a plat of Sunset Addition No. 6 in Olympia was filed in the office of the County Auditor for Thurston County. The owners and platters of the Addition did not file with the plat any building restrictions. As they sold the residential lots, the deeds contained the platters' restrictive building covenants. Covenant No. 2 provided:

That the said house and gargage shall not be built closer to the street lines than thirty (30) feet, that also applies to corner lots; houses must be kept back from the streets on the side lines thirty (30) feet and five (5) feet from the interior lot lines.

All porches are considered part of the house and must stay back from the street lines on inside or corner lots thirty (30) feet.

May 1, 1945, the owners deeded Lots 11 and 12 in Block 5 to Howard C. Moon and wife. The deed was recorded in the office of the County Auditor, and contained 12 restrictive covenants, including the one above quoted.

October 27, 1958, Howard C. Moon and wife sold their lots on contract to Robert H. Keller and wife. The contract recited that title was subject to the 'Easements and restrictions of record.' The deed, which was placed in escrow, contained no restrictive covenants. However, the Kellers received a title insurance policy, dated November 1, 1958, to which was attached a re sume of the platters' 12 restrictive covenants. In October 1959, the Kellers completed payment of their contract, and the deed was delivered to them by the escrow holder.

Lot 11, Block 5, owned by Robert H. Keller and wife, is a corner lot on the southeast corner of the block. Lot 10, Block 5, is a corner lot on the southwest corner of the block, owned by F. Whitmore Reading and wife. The Reading deed contains the same restrictive covenants as those in the deed to Howard C. Moon, from whom Kellers obtained their title.

December 18, 1961, Robert H. Keller commenced construction of a residence on Lot 11. January 5, 1962, when it became evident from the stakes and proposed footings that the residence would be only 20 feet from the street, instead of 30 feet as provided by the platters' restrictive building covenant No. 2, Mr. Reading contacted Mr. Keller and informed him of the building restriction. When building continued, Mr. Reading again called Mr. Keller and advised him that an injunction would be sought if construction continued as contemplated. Mr. Keller had then expended some $1,500 in construction costs. January 26, 1962, other property owners residing in the Addition protested the violation to Mr. Keller in writing.

February 15, 1962, F. Whitmore Reading and wife commenced this action to enjoin the construction of the residence on Lot 11 in violation of the restrictive covenant. By this time, Mr. Keller had expended $6,000 of the total $12,000 construction cost of the residence on Lot 11.

February 15, 1962, the court granted a temporary injunction restraining further construction. The court dissolved the injunction on March 5, 1962, but orally advised the Kellers 'that further construction with attendant expenditures would be absolutely at the risk of the defendants and would have no legal effect upon the Court's decision when the matter came on for hearing on the merits.' (Finding of Fact No. 7.)

When the cause was tried to the court on the merits, construction of the residence had been completed. Findings of fact and conclusions of law in favor of the plaintiffs were entered. The judgment granting a permanent injunction is in part as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendants, individually and as a marital community, and any grantees in interest, be and they are hereby permanently enjoined from violating the said restriction, to-wit: enjoined from constructing, maintaining or continuing any structure, and in particular the present residence closer to the street line than thirty feet, as such present residence is located on Lot 11, Block 5, Sunset Addition No. 6, according to the plat thereof, as recorded in Volume 11 of Plats, page 24, records of the County Auditor for Thurston County, and defendants hereby are given a reasonable time to comply with such permanent injunction, to--wit: one hundred twenty (120) days from the date of the entry of this injunction decree.

The defendants have appealed.

Appellants assert that 'There is very little, if any, controversy concerning the facts in this case,' and that the appeal is predicated upon equitable principles.

The trial court found that the appellants, with knowledge of the restrictive building covenant, built their home in violation of it.

The evidence established that respondents had purchased a residence on Lot 9, Block 1, of Sunset Addition No. 6, in which they then resided. The house and been built by the former owners at ground level instead of 12 inches above ground level, as required by the restrictive covenants. Appellants urge that the facts here support are application of the equitable principle that one who has violated a building restriction cannot enforce a building restriction against others. 14 Am.Jur. Covenants, Conditions and Restrictions § 338, at 665.

The court found that the Reading property had been built by the former owners in violation of the restrictive covenant, but nevertheless granted respondents the relief prayed for. We...