Riley v. Boyle
| Decision Date | 01 December 1967 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 434 P.2d 525,6 Ariz.App. 523 |
| Parties | Harold L. RILEY, Helen L. Riley, Appellants, v. Douglas E. BOYLE, Maureen B. Boyle, Appellees. 289. |
| Court | Arizona Court of Appeals |
Anthony B. Ching, Tucson, for appellants.
Miller & Pitt, by Richard L. McAnally, Tucson, for appellees.
This is an action brought by the plaintiffs and appellants against the defendants and appellees for an injunction and other relief by reason of alleged violation of building restrictions in the Westridge Estates, a subdivision in Pima County, by the defendants. Both plaintiffs and defendants are lot owners in this subdivision, a high-class residential district.
The plat of Westridge Estates was filed on May 27, 1960 and the following day the owners of the land recorded certain restrictions for the estate, which, it is conceded, had been amended once by an amendment not pertaining to a restriction involved in this case.
It is further alleged that the defendants started the construction of a dwelling house on Lot 46 that violated Restriction No. 6:
'No dwelling constructed on any lot shall be two stories above the street level.'
And Restriction No. 15 which provided:
Restriction No. 17 provides for the granting of injunctive and other relief.
Restriction No. 19 is as follows:
'The owner or owners of 51% Of the lots in this subdivision shall have the right to amend or change these conditions, reservations and restrictions for the beneficial improvement and interest of WESTRIDGE ESTATES.'
The complaint filed June 15, 1965 further alleges that the plaintiffs had given notice of violation as provided for in the restrictions to the defendants regarding the construction of the building but the defendants insisted on going ahead.
The defendants in their amended answer deny the construction was in violation of restriction, and raised a question of the amendment of the restrictions by 51 per cent of the lot owners on May 25, 1965, and also set forth that there had been numerous violations of restrictions in the subdivision and that, therefore, these particular restrictions should not be enforced against them.
The court by its findings as originally made, found that the amendments of May 25, 1965 permitted the construction of the residence as contemplated by them, and then went on to say:
'Having found as above, it is not necessary for the Court to pass upon the questions involved had such amendment not been applicable to the construction of the residence contemplated and started by Defendants.'
Apparently these findings were prepared by the judge himself. Subsequently more extensive findings were prepared by the attorney for the plaintiff and signed by the court. However, these findings do not include any finding for or against and of the defenses except the finding of the validity of the amendment of May 25, 1965 and that the proposed structure was not in violation of the restrictions as amended. The court thereupon entered judgment in favor of the defendants. Motion for new trial was denied and appeal taken.
The sole question before this court is whether the amendment of May 25, 1965 is valid because if it is, the judgment of the lower court must be affirmed. On the other hand, if this amendment is invalid, then this case must be remanded for appropriate action.
The amendment signed by at least 51 per cent of the lot owners provides as follows. The owners
'DO HEREBY DECLARE a change in paragraphs 6, 15 and 17 of the Restrictions referred to above.
Par. 6 of restrictions recorded in Book 1616, page 586, shall not apply to lot #46.
Par. 15 shall be deleted and a new paragraph 15 substituted to read as follows.
Par. 17 Insert after the word 'lots', 'except lot number 46'.
This amendment is being made by the authority of Paragraph 19 of the restrictions.'
The plaintiffs concede the validity of the amendment to paragraph 15 and that matter is no longer before the court, but plaintiffs strenuously deny that the amendment has any validity insofar as it attempts to change paragraphs 6 and 17 by excepting one lot therefrom.
Only one case dealing with the precise question herein involved has been cited to the court. That is the case of Cowherd Development Company v. Littick, 361 Mo. 1001, 238 S.W.2d 346 (1951). It held that a majority of the owners of the lots could exercise the power of extending the restrictions for an additional period of 25 years either as to all of the lots or as to none of the lots but could not keep the restrictions in force as to some lots but not as to others.
The comment is made in the notes of 4 A.L.R.3d 582:
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