Stockdale v. Lester

• Decision Date: 09 April 1968
• Docket Number: No. 52772,52772
• Parties: Jerome E. STOCKDALE, Appellant, v. Stanley T. LESTER and Vivian E. Lester, husband and wife; and Herbert Allen, Appellees.
• Court: Iowa Supreme Court

Page 20

158 N.W.2d 20

Jerome E. STOCKDALE, Appellant, v. Stanley T. LESTER and Vivian E. Lester, husband and wife; and Herbert Allen, Appellees.

No. 52772.

Supreme Court of Iowa.

April 9, 1968.

Rosendahl & Forsyth, Estherville, for appellant.

Merrill C. Clark, Estherville, for appellees.

MOORE, Justice.

This is a declaratory jdugment action, tried in equity, for construction of certain restrictive covenants pertaining to lots within a platted subdivision and for an injunction against defendants' proposed use of one lot as a public street. The trial court construed the covenants contrary to plaintiff's contentions and denied injunctive relief. Plaintiff has appealed.

In 1964 plaintiff, Jerome E. Stockdale, owned an undeveloped tract of land on the north side of Highway 9 in Estherville. Adjacent thereto to the east a smaller undeveloped tract was owned by defendant, Herbert Allen. Each contemplated platting and developing his land as an exclusive residential subdivision. Each was confronted with the problem of access as the grade of Highway 9 is considerably lower in elevation than the land of the respective parties.

In the fall of 1964 plaintiff met with the Estherville Planning and Zoning Commission concerning dedication and plat of his land to be known as Orchard Hill Addition. He also obtained from the State Highway Commission approval for access to Highway 9. He was required to eliminate one lot of the addition, to grade down the land and install a curving permanent roadway over the hill into the addition.

Defendant Allen at the same time met with the Planning and Zoning Commission and informed it his eventual plans called for developing his area to the east. He expressed a desire to tie into the street plan to be developed by plaintiff. Before approving Orchard Hill Addition plans the commission required plaintiff to change his plat to leave a 50 foot strip between Lots 2 and 3 in Block 1 running from Orchard Lane, a north-south street, to the west edge of Allen's tract.

The commission made no requirement the 50 foot strip be conveyed to Allen without cost or that a street be then put in. It remained available for such purpose at all pertinent times. Under the zoning ordinance plaintiff was required to pay the entire cost of grading, permanent street paving, sanitary and storm sewer lines, and curb and gutter in Orchard Hill Addition. His plat was later approved by the commission and the Estherville City Council.

The dedication and plat of Orchard Hill Addition as approved and recorded in the office of the County Recorder on December 15, 1964 contained these protective covenants pertinent to this appeal:

'1. All lots described herein shall be known, described and used solely as residential class lots, and no structure shall be erected on any residential building lot other than a detached one or two family dwelling not to exceed two stories in height and a one or more car garage.

'2. No lots shall be resubdivided to make any lots smaller than 70 feet by 120 feet.

'7. No noxious or offensive trade shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.'

On July 13, 1966 plaintiff sold Lot 1, Block 1 of Orchard Hill Addition to defendants Stanley T. and Vivian E. Lester. Soon thereafter they conveyed it to Kirtland, Inc., a corporation owned and managed solely by defendant Allen. At trial time the deed to Kirtland had not been recorded. Lot 1, Block 1 runs north and south, fronts on Orchard Lane Avenue, is 80 feet wide, 120 long and parallels the 50 foot strip intended for a street but is separated therefrom by Lot 2, Block 1.

In the fall of 1966 Allen submitted to the Planning and Zoning Commission his preliminary plan for his addition, to be known as Woodland Heights Addition. Rather than any attempt to use the 50 foot strip in Orchard Hill Addition, Allen announced his intention to use the north 50 feet of Lot 1, Block 1 for its entire length as a public street, to provide access from Orchard Hills to Woodland Heights, his proposed 19 lot new subdivision. He immediately began grading and other preparatory construction work on Lot 1, Block 1 for such a street. Further work on this land was enjoined pending outcome of this appeal.

The trial court held use of 50 feet of Lot 1, Block 1 as a public street would not violate restrictive covenants 1, 2 and 7. We do not agree.

I. Innumerable precedents hold restrictions on the free use of property are strictly construed against the party seeking to enforce them, they will not be extended by implication or construction beyond the clear and unambiguous meaning of their terms and doubts will be resolved in favor of the unrestricted use of property. Jones v. Beiber, 251 Iowa 969, 971, 972, 103 N.W.2d 364, 365; Maher v. Park Homes, Inc., 258 Iowa 1291, 1296, 1297, 142 N.W.2d 430, 434; 20 Am.Jur.2d Covenants, Conditions, etc., section 187; 26 C.J.S. Deeds § 163a.

This rule of strict construction obtains only where the wording of the restriction is ambiguous. Beeler Development Co. v. Dickens, 254 Iowa 1029, 1033, 120 N.W.2d 414, 416; Maher v. Park Homes, Inc., supra.

Application of this strict rule of construction will not be allowed to subvert the manifest intention as shown by the entire instrument in which the covenant appears. Proper regard for the contemplated purpose of the parties must be had; the words used must be given their ordinary and obvious meaning as commonly understood, unless they have acquired a peculiar meaning in the particular relation in which they appear, or unless it clearly appears from the context it was intended to use them in a different sense. Jones v. Beiber, 251 Iowa 969, 972, 103 N.W.2d 364, 365, 366, and citations.

Attributing the ordinary and obvious meaning to the words 'All lots described herein shall be * * * used solely as residential class lots' as found in covenant 1, it seems clear Lot 1, Block 1, could not be used as a public street.

The words 'lot' and 'street' are contra-distinctive terms and have separate, mutually exclusive meanings. City of Schenectady v. Trustees of Union College, 144 N.Y. 241, 39 N.E. 67, 68; Application of Dixon, 120 Cal.App. 635, 8 P.2d 881, 882; State of California v. United States, Cir. 9, 169 F.2d 914, 919; Loveladies Prop. Own. Ass'n v. Barnegat City Serv. Co., 60 N.J.Super. 491, 159 A.2d 417, 423; Peake v. Azusa Valley Sav. Bank, 37 Cal.App.2d 296, 99 P.2d 382, 384; Pierson v. Bradfield, 43 Cal.App.2d 519, 111 P.2d 460, 463; 25 A Words and Phrases, Perm Ed. 'Lot,' page 430.

Montgomery v. Hines, 134 Ind. 221, 225, 33 N.E. 1100, 1101, states: "Lot' and 'street' are two separate and distinct terms, and have separate and distinct meanings. The term 'lots', in its common and ordinary meaning, includes that portion of the platted territory measured and set apart for individual and private use and occupancy; while the term 'streets' means that portion set apart and designated for the use of the public, and such is the sense in which such terms will be presumed to have been used, unless it be made to appear that a contrary meaning was intended."

Defendants-appellees rely heavily, as did the trial court, on Bove v. Giebel, 169 Ohio St. 325, 159 N.E.2d 425. It is readily distinguishable on the facts. In Bove the restriction 'for residential purposes only' was held not to prohibit use of a 25 foot strip on a lot as a private driveway to a six acre tract owned by the same person and to be used for two residences. The driveway was the only available means of access and was to be private, not a public street. Similar facts are found in R. R. Improvement Association v. Thomas, 374 Mich. 175, 131 N.W.2d 920, and McInerney v. Sturgis, 37 Misc.2d 302, 234 N.Y.S.2d 965, cited by defendants-appellees. A public street, like the one here, over which the parties would have no control, is not comparable to a private driveway found in the three cited cases. Also, other access is available here.

Plaintiff in Thompson v. Squibb, Fla.App., 183 So.2d 30, brought an action to enjoin defendant from using a portion of a lot which was subject to covenant restricting use for residential use as a connecting street between adjoining subdivisions. The court granted the injunction and ordered defendant to remove all paving which he had constructed on the lot in question.

The covenant read: 'All land included in Mobile Homes Estate shall be used for residential purposes only, except such lots, blocks or parcels as may be hereafter designated for other purposes by the Committee.'

At page 32 the court said: 'There is no ambiguity in the expression 'shall be used for residential purposes only.' As employed in this covenant, the word 'only' is synonymous with the word 'solely' and is the equivalent of the phrase 'and nothing else."

At pages 32 and 33 the court states: 'It is obvious that the use of defendant's lot as a connecting street so that there would be access from the streets of the adjoining subdivision to those of the subdivision for whose benefit the restrictive covenants were made is not in any sense a residential use or a use incicential thereto.'

Use of Lot 1, Block 1 as a street would clearly violate the restriction that it was to be used solely as a residential class lot.

II. Use of the 50 foot strip over the entire length of Lot 1, Block 1 for a public street would result in the remaining 30 foot strip becoming a separate lot. The trial court held such remaining strip not violative of covenant number 2, provided no building was placed thereon. We do not agree. We hold establishment of a public street on a 50 foot strip of Lot 1, Block 1, leaving a 30 foot strip thereon, would be resubdividing in violation of the restrictive covenant 2 under its plain ordinary meaning.

III. Our holding as to covenants numbered 1 and 2 makes consideration of covenant number 7 unnecessary.

We conclude plaintiff is entitled to a...