Smith v. Nelson

• Decision Date: 05 February 1962
• Docket Number: No. 19484,19484
• Citation: 149 Colo. 200,368 P.2d 566
• Parties: Ira J. SMITH, Plaintiff in Error, v. Paul W. NELSON, Hildegarde G. Nelson, Lavern Nelson, Helen Nelson, Philip Struble, Donna Struble, Ralph Hudspeth, Katherine Hudspeth, George Rolfes, E. Carol Rolfes, Donald L. Lorenz and Betty Lorenz, Defendants in Error.
• Court: Colorado Supreme Court

Page 566

368 P.2d 566

149 Colo. 200

Ira J. SMITH, Plaintiff in Error, v. Paul W. NELSON, Hildegarde G. Nelson, Lavern Nelson, Helen Nelson, Philip Struble, Donna Struble, Ralph Hudspeth Katherine Hudspeth, George Rolfes, E. Carol Rolfes, Donald L. Lorenz and Betty Lorenz, Defendants in Error.

No. 19484.

Supreme Court of Colorado, In Department.

Feb. 5, 1962.

Rehearing Denied Feb. 19, 1962.

Robert H. Gleason, Steamboat Springs, for plaintiff in error.

Donald L. Lorenz, Steamboat Springs, for defendants in error.

HALL, Justice.

The parties appear here in reverse order to their appearance in the trial court. We refer to them as plaintiffs and defendant, as they appeared in the trial court.

Plaintiffs, as owners of Lots 6 to 15, inc., Block 3, and Lots 16 to 20, inc., Block 2, of North Highlands Addition to the Town of Steamboat Springs, Routt County, Colorado, together with all improvements (six homes) thereon, commenced this action by filing a complaint on September 3, 1959. They sought (1) a mandatory injunction requiring the defendant, owner of Lots 21 and 22 in said Block 2, to comply with the terms of an agreement imposing certain restrictive covenants concerning the type and location of improvements that could be placed on said lots, and (2) an injunction to restrain defendant from placing houses on said lots in violation of the terms of said agreement. Attached to the complaint is a copy of the agreement executed November 7, 1941, duly acknowledged and recorded in the office of the County Clerk of Routt County, Colorado, November 14, 1941. This agreement is signed by the then owners of all of Lots 6 to 15, Block 3, and Lots 16 to 22, Block 2. The violations of which complaint was made are: (1) placing two houses on one residential building plot; (2) placing a building nearer than forty feet to the front line of the building plot or nearer than five feet to any side street line; (3) placing a residential structure containing an area of less than 790 square feet upon building plots; (4) moving two old residences from other locations onto one lot, each of which dwellings cost the defendant much less than $4000.00; (5) violating the intent and purpose of the restrictive covenants.

To this complaint the defendant filed an answer in which he admits the execution and recording of the agreement containing the restrictive covenants, but denies that the same has validity, admits that defendant acquired title to his lots 'burdened with said easements, covenants and restrictions in favor of plaintiffs,' admits that he has started construction of one house on a building plot and moved a second house onto another building plot, said plots composing Lots 21 and 22. For a second defense he alleges generally that some of the plaintiffs are maintaining structures on their lots in violation of the restrictive covenants and therefore cannot complain of what defendant does with hit lots; that the plaintiffs have expressly or impliedly permitted others to violate the terms of said agreement and by so doing the agreement has been abandoned. As a further defense or bar, the defendant states that the plaintiff, in standing idly by while he placed two houses on his lots, are guilty of laches which estop them from obtaining any relief. Plaintiffs by reply deny affirmative matters set forth in the answer.

Trial was to the court which heard extensive testimony, and pursuant to request of counsel for all parties viewed the properties of all of the parties. Findings were entered, the pertinent portions of which are as follows:

1. That all of the lots are subject to the restrictive covenants; (2) that the defendant acquired title to Lots 21 and 22 on May 2, 1959, burdened with the provisions of the agreement of November 7, 1941, imposing the restrictions on the use of the lots, and with knowledge thereof; (3) that defendant, during 1959, moved two houses onto Lot 22, both in violation of said agreement; (4) that the restrictive covenants are of beneficial value to the plaintiffs and the lots affected thereby; (5) that the defendant had actual and constructive notice of said restrictions and proceeded in violation thereof; (6) that plaintiffs will suffer irreparable damage unless the defendant complies with said covenants.

Judgment was entered April 25, 1960, directing that by July 1, 1960, the defendant (1) move the (Mt. Harris) house facing Boulevard back to a point at least forty feet from the property line; (2) move the second (Nelson House) from Lot 22, and (3) complete the Mt. Harris house so that it will have a finished appearance within a reasonable time.

The defendant is here by writ of error seeking reversal.

As a first ground for reversal defendant contends that the restrictive covenants have not been violated in the manner as found by the court. That the agreement in using the words 'lot' and 'plot' does not use them interchangeably, but that they have separate and distinct meanings. This argument is ingenious, but to so construe the agreement would...