Reed v. Williamson, 34065

• Decision Date: 22 March 1957
• Docket Number: No. 34065,34065
• Citation: 164 Neb. 99,82 N.W.2d 18
• Parties: J. Edward REED and Claire B. Reed, d/b/a Reed Construction Company, Appellees, David D. Wendt et al., Interveners-Appellees, v. Lowell J. WILLIAMSON and Gus Rieseberg, Appellants, Impleaded with Clyde Kissinger, et al., Appellees.
• Court: Nebraska Supreme Court

Page 18

82 N.W.2d 18

164 Neb. 99

J. Edward REED and Claire B. Reed, d/b/a Reed Construction Company, Appellees, David D. Wendt et al., Interveners-Appellees, v. Lowell J. WILLIAMSON and Gus Rieseberg, Appellants, Impleaded with Clyde Kissinger, et al., Appellees.

No. 34065.

Supreme Court of Nebraska.

March 22, 1957.

Syllabus by the Court

1. A restrictive covenant that lots in an addition to a city shall be exclusively a residential area is unambiguous and prohibits use of the lots for any purpose other than residential.

2. A valid restriction that lots in an addition to a city shall be exclusively a residential area prevents use of them for the exploration for or production of oil and gas.

3. A consideration for a promise may be a detriment to the promisee as well as a benefit accruing to the promisor.

4. The mutual agreement and obligation of the signers of an instrument to conform to a restrictive covenant expressed therein are a sufficient consideration to support the contract.

5. Restrictive covenants, particularly if negative, create equitable easements or servitudes which may be enforced in equity by anyone interested in the property without regard to privity either of contract or of estate and without regard to whether or not the covenants run with the land.

6. Such a restriction is not required to be a grant or reservation. It creates an equitable right in the nature of an equitable easement or servitude if imposed on the use of the land by a common grantor in furtherance of a general improvement plan intended for the mutual benefit of all who may become interested, enforceable in equity on no broader principle than that equity will enforce a proper contract concerning real estate against all taking with notice of it.

7. The test of whether a change of condition of the surrounding neighborhood is a defense to an action to enforce a restrictive covenant is whether the original purpose and intention of the parties creating the restriction, pursuant to the general scheme, has been so destroyed by the changed condition that the restriction is no longer a substantial benefit to the residents.

8. If the restriction in a residential area has been substantially complied with, the fact that adjoining or surrounding property is used for business purposes does not generally change the character of the area itself so that the owners of property therein may not be entitled to have the restriction enforced.

9. Injunction is a proper remedy to prevent violation of a restrictive covenant. A remedy at law may be inadequate, may result in a multiplicity of actions, and may permit the subversion of the plan of improvement and development to continue.

Torgeson, Halcomb & O'Brien, Kimball, P. M. Everson, Wymore, John D. Knapp, Kimball, for appellants.

Van Steenberg & Myers, Kimball, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This is an injunction action to prohibit appellants from trespassing on the part of Sunny View Heights Addition to Kimball, Nebraska, which is subject to and affected by restrictive covenants, from drilling oil and gas wells thereon, and for general equitable relief.

The following are the circumstances of this litigation:

Gus Rieseberg, referred to as appellant, was the owner of the northeast quarter of the northeast quarter of Section 32, Township 15 North, Range 55 West of the 6th P. M., in Kimball County, which he platted as Sunny View Heights Addition to Kimball on August 12, 1949. He sold and conveyed to J. Edward Reed and Claire B. Reed, husband and wife, as joint tenants, on March 3, 1953, Lots 3 to 8, inclusive, Block 1 of the addition subject to the reservation expressed in the deed 'Save and except, however, the oil, gas and other minerals in, on and under said real estate which are reserved to the grantor, his heirs and assigns forever * * *.' Appellant, by contract in writing, on March 27, 1953, sold to and J. Edward Reed purchased Block 1 except Lots 1 to 8, inclusive, and Block 2 of said addition subject to the reservation of oil, gas, and other minerals quoted above. The original plat of the addition was vacated on May 29, 1953, the area of the addition was replatted as Sunny View Heights Addition to Kimball, it has since been in existence, and the last plat is the one referred to in this cause.

Appellant, J. Edward Reed, and Claire B. Reed on August 27, 1953, executed and acknowledged an instrument which was by its title characterized as 'Restrictive Covenants.' It was filed September 1, 1953, and recorded in the public records of Kimball County in the office of the county clerk. It recited that the persons who executed it were the owners of the addition except the west 165 feet of Block 4 and that they desired to assure persons who acquired lots in the addition that the real estate therein would be used only for certain purposes and in a certain manner. It was made applicable to all the addition except the west 164 feet of Block 4 owned by E. E. Brown on which a house had been constructed and all of Block 5 owned by appellant on which a residence had been built. The instrument consists in part of the following:

'Now Therefore the undersigned Gus Rieseberg, single; J. Edward Reed and Claire B. Reed, husband and wife, do hereby covenant and agree with each and every person who shall hereafter acquire any portion of the above described real estate that: * * *

'2. All of the lots in said Addition shall be exclusively a residential area with the exception of Blocks 1 and 2 and lots 1, 2, 3, and 4 of Block 3 in which commercial development will be permitted, restricted however, to businesses which are either of a retail or professional nature.

'3. That the only buildings which may be erected in said Addition except on those lots where commercial development is permitted shall be either a detached single family dwelling with at least one or more stories above the ground level or a one or two car garage or the equivalent of the latter for exclusive use of storage of furniture, lawn tools, etc., used in ordinary living or maintenance of property. * * *

'5. That no dwelling shall be erected with less than 768 square feet of floor space at or above the ground level.

'6. No trade or activity shall be carried on which will constitute an annoyance or nuisance or which may be offensive or objectionable to the neighborhood. * * *

'It is expressly understood and agreed that these covenants are to run with the land and shall be binding upon each and every person hereafter acquiring an interest in and to any portion of the above described real estate and they shall be in full force and effect for a period of forty years from and after the first day of June, 1953.'

The instrument was joined in by appellant at the solicitation of J. Edward Reed. There was no money or other thing of value given the former by the latter at the time it was executed except as evidenced by the terms of the instrument. Appellant then owned no part of the surface estate of the real estate affected by the instrument except he had the legal title to the part thereof described in the contract of sale and purchase made on March 27, 1953, by him and J. Edward Reed and appellant was entitled to retain the legal title thereto until the unpaid part of the purchase price thereof was satisfied. There was a continuous contract relationship between appellant and J. Edward Reed at all times important to this case.

The contract of March 27, 1953, was canceled by the parties thereto and a new one was made May 27, 1954, containing the reservation to appellant of all oil, gas, and other minerals in, on, or under the real estate. Deeds of the surface estate were made and delivered as required by the contracts. The last deed bears date of February 24, 1955, after this litigation was commenced. Each of the deeds contained reservation in appellant of the oil, gas, and other minerals by the use of the language above set out.

On September 16, 1954, appellant executed and delivered to Lowell J. Williamson, hereafter mentioned herein as lessee, an oil and gas lease of all the real estate first described herein except the west 165 feet of Block 4 of the addition which was owned by E. E. Brown who is not a party to this case. The lessee, or persons acting for him, about January 3, 1955, went upon Lot 10, Block 14 of the addition, without permission, for the purpose of staking a location on which to drill a test well by virtue of the lease given thereon by appellant. He or they were ordered from the premises and this litigation was instituted.

Gus Rieseberg and Lowell J. Williamson, collectively designated appellants herein, offered at the trial to be bound by and to comply with ordinance No. 140 of Kimball as though it were a contract between them and persons interested in property in the addition. The ordinance was not passed until January 17, 1955, after this litigation was commenced.

J. Edward Reed, hereafter designated Reed, financed the housing project he developed on the premises he bought from appellant through the Prudential Insurance Company of America, hereafter called insurance company, by loans made by it and guaranteed by the Federal Housing Administration, designated herein FHA. The negotiations for financing the project had their inception about May 15, 1953, when FHA was advised of the proposed plans of the project. FHA would not have insured loans on property in the addition in the absence of restrictive covenants as suggested in an outline issued by it for development of single-family, detached dwellings. The first sentence of Requirement 1 of the FHA outline for that class was: 'No lot shall be used except for residential purposes.' The first loan application submitted by Reed was June 23, 1953, prior to the execution of the restrictive covenants by him and appellant, and the commitment of the insurance company was made ...