Remilong v. Crolla

• Decision Date: 27 March 1978
• Docket Number: No. 4715,4715
• Citation: 576 P.2d 461
• Parties: Ray REMILONG and Joyce Remilong, Appellants (Defendants below), v. Dominic CROLLA and Catherine Crolla, Appellees (Plaintiffs below).
• Court: Wyoming Supreme Court

Page 461

576 P.2d 461

Ray REMILONG and Joyce Remilong, Appellants (Defendants below), v. Dominic CROLLA and Catherine Crolla, Appellees (Plaintiffs below).

No. 4715.

Supreme Court of Wyoming.

March 27, 1978.

Katherine H. Nitschke of Nitschke & Nitschke, Jackson, for appellants.

Paul O. Vaughn, Jackson, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS, and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellants prosecute this appeal from a judgment ordering them to remove certain trailers and mobile homes from lands which they own and permanently enjoining them and their successors or assigns from placing, or allowing the placement of, any such trailers or mobile homes upon these lands.

Appellants Remilongs were the original owners of the lands now owned and occupied by appellees Crollas and sold them the tract which they now own and where their home is located, but appellants retained a portion thereof, being an adjoining tract to which this injunctive action was applied. The tract which the Remilongs retained contains 2.9 acres. The adjoining tract sold to the Crollas is one containing approximately .88 acres upon which is located a house which Remilongs sold to Crollas for the sum of $50,000. Crollas assert that a condition of the purchase was that Remilongs would remove all the trailers or mobile homes from the tract which they retained and claim that the fact they have now moved trailers thereon greatly diminishes the value of the lands purchased and that these lands were purchased in reliance upon such promise and agreement. Additionally, they claim damages in the sum of $10,000. This judgment is based upon findings of fact and conclusions of law, which are as follows:

"FINDINGS OF FACT

"1. During late winter or early spring of 1974, Plaintiffs and Defendants entered into an oral agreement whereby Defendants would sell to Plaintiffs a certain parcel of property adjoining property owned by Defendants.

"2. Defendants promised and it was a condition of said agreement that Defendants would remove all trailers or mobile homes then existing on their remaining property and that they would never again permit or suffer the placement of trailers or mobile homes on said property.

"3. Pursuant to said agreement and prior to the consummation of the sale referred to, Defendants procured the removal from their property of all trailers and mobile homes.

"4. On May 28, 1974, Plaintiffs, acting in reliance upon the aforesaid promise or representation, purchased said property.

"5. Since the time of said purchase Defendants have placed and have allowed the placement of trailers and mobile homes upon their property adjacent to the property purchased by the Plaintiffs.

"6. That the placement and presence of said trailers on the property adjacent to Plaintiffs injures Plaintiffs by causing a diminution in the value of their adjoining property.

"Based on the foregoing Findings of Fact, the Court makes the following Conclusions of Law:

"CONCLUSIONS OF LAW

"1. The parties' oral contract was a valid and binding contract, a condition or term of which was that Defendants would remove any trailers or mobile homes on their property and never allow said structures to be placed on their property again.

"2. That said promise was in the nature of a restrictive covenant, running with the land, restricting the use of Defendants' land.

"3. It would be an unjust and unconscionable result and a breach of contract and a breach of a restrictive covenant if Defendants were allowed to place or allow the placement of trailers upon their aforesaid property.

"4. That a mandatory injunction should issue requiring Defendants to remove all trailers or mobile homes from their property and that a permanent injunction issue enjoining the Defendants, or their successors and assigns, from placing trailers on said property."

This matter presents two questions upon which our decision must be based, i. e., does an oral contract creating a restrictive covenant come within the statute of frauds? If such agreement is within the prohibition of the statute of frauds, may the effect thereof be avoided by the application of an equitable or promissory estoppel?

It is apparent that if the answer to this first question is in the negative, this judgment should be summarily affirmed. We do not find that this may be so answered, however.

Appellees concede an existent conflict of judicial opinion in this area, ¹ and cite authority sustaining their position that such an agreement does not come within the statute. However, in our view, and after examining such authorities, it appears that these opinions are "result oriented" and that the logic upon which they are based is at least questionable. It may be suggested that these opinions ignore certain realities as to the possible effect of such restrictions upon the use, enjoyment, and value of the lands to which they are attached and that the courts may have been more interested in relieving what appeared to be onerous situations than in a proper application of the law. It is probable that the dangers of this apparent approach were in the mind of the court when it said in Crosby v. Strahan's Estate, 78 Wyo. 302, 324 P.2d 492, 496:

" * * * The tendency has been to restrict rather than enlarge and multiply the cases of exceptions to the statute, and the courts should not be tempted to turn aside from its plain provisions merely because of the hardship of the particular case. 49 Am.Jur. Statute of Frauds § 533, pp. 832, 833."

There is no reason now to disregard this caveat.

Appellants assert that the oral agreement which the court found to exist is within the prohibition of two subsections of the statute of frauds, § 16-1-101, W.S.1977:

"(i) Every agreement that by its terms is not to be performed within one (1) year from the making thereof;"

"(v) Every agreement or contract for the sale of real estate, or the lease thereof, for more than one (1) year."

Although there may be some apparent application of the first subsection of this statute, we shall not explore or discuss this because of the abundant authority which brings such an agreement within the fifth paragraph of the statute.

This court has not heretofore considered the question of whether a restrictive covenant is within the statute of frauds, although an easement for an irrigation ditch has been held to be an interest in real estate within the statute, Linck v. Brown, 55 Wyo. 100, 96 P.2d 909, 911. An agreement restricting the use of land is described in many cases and considered to be a negative easement, Huggins v. Castle Estates, Inc., 36 N.Y.2d 427, 369 N.Y.S.2d 80, 330 N.E.2d 48; Bennett v. Charles Corporation, W.Va., 226 S.E.2d 559, 563; Putnam v. Dickinson, N.D., 142 N.W.2d 111, 124; Fort Dodge, Des Moines & Southern Railway v. American Community Stores Corporation, 256 Iowa 1344, 131 N.W.2d 515, 521. When its establishment is sought in equity it has been treated or described as an equitable estate or interest in land, Turner v. Brocato, 206 Md. 336, 111 A.2d 855, 861, and cited authorities. However, it is not necessary herein to categorize the nature of the interest created by a restrictive covenant because its real effect upon the use, enjoyment and value of the property to which it may be attached is obvious. A statement appearing in Wiley v. Dunn, 358 Ill. 97, 192 N.E. 661, 663, is most applicable in this case:

" ' * * * The policy of the law requires that everything which affects the title to real estate shall be in writing, and that nothing shall be left to the frailty of human memory or as a temptation to perjury. * * * ' " (Quoting from Stephens v. St. Louis Union Trust Co., 260 Ill. 364, 103 N.E. 190, 193; and cited with approval in Corbridge v. Westminster Presbyterian Church and Society, 18 Ill.App.2d 245, 151 N.E.2d 822, 831.)

This view is consistent with Crosby v. Strahan's Estate, supra, and only serves to implement and strengthen that holding. It may be more desirable, instead of categorizing such restrictive covenant as an equitable interest, equitable servitude, or a negative easement, to frankly recognize that such covenant does affect the title, use, and estate, and recognize it independently for what it is. At best, it could probably be classified as creating a type of equitable ownership or servitude. It would appear of particular importance that such restrictive covenants be classified as interests in land without reference to particular terminology because of their increasing importance and use in our modern-day society. We would then hold that this asserted agreement creating a restrictive covenant upon appellants' land was within the prohibition of the statute of frauds, Frank v. Visockas, 356 Mass. 227, 228-229, 249 N.E.2d 1; Cottrell v. Nurnberger, 131 W.Va. 391, 47 S.E.2d 454, 456, 5 A.L.R.2d 1298; Droutman v. E. M. & L. Garage, Inc., 129 N.J.Eq. 545, 20 A.2d 75, 76; Annotation 5 A.L.R.2d 1316, 1320-1322; 5 Powell on Real Property, § 672, pp. 152-153 (1976); A.L.I. Restatement of the Law, Property, § 522, p. 3165 (1944). This does not, however,...