Swaggerty v. Petersen

• Decision Date: 28 December 1977
• Citation: 280 Or. 739,572 P.2d 1309
• Parties: David A. SWAGGERTY and Carol Swaggerty, husband and wife, Kenneth A. Springate and Kathleen M. Springate, husband and wife, Svent Toftemark and Lois Toftemark, husband and wife, Paul S. Holbo and Kay A. Holbo, husband and wife, James W. Kays and Marilyn Kays, husband and wife, Respondents, v. Carl PETERSEN, Appellant.
• Court: Oregon Supreme Court

Page 1309

572 P.2d 1309

280 Or. 739

David A. SWAGGERTY and Carol Swaggerty, husband and wife Kenneth A. Springate and Kathleen M. Springate, husband and wife, Svent Toftemark and Lois Toftemark, husband and wife Paul S. Holbo and Kay A. Holbo, husband and wife, James W Kays and Marilyn Kays, husband and wife, Respondents, v. Carl PETERSEN, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 7, 1977.

Decided Dec. 28, 1977.

[280 Or. 740-A] H. Thomas Evans, Eugene, argued the cause for appellant. With him on the briefs were Dave Phillips and Evans & Armstrong, Eugene.

Joe B. Richards, of Luvaas, Cobb, Richards & Fraser, Eugene, argued the cause and filed a brief for respondents.

Before DENECKE, C. J., HOWELL and BRYSON, JJ., and GILLETTE, J. Pro Tem.

HOWELL, Justice.

This suit arises out of a dispute over the meaning of the density provisions of certain subdivision building restrictions. All of the parties own property within the subdivision. The plaintiffs contend that two houses built by defendant are in violation of the applicable building restrictions. The trial court agreed, and ordered the houses removed. Defendant appeals, contending that the restrictions have not been violated; that if they have been violated, the plaintiffs have waived their right to complain or are estopped to do so; and that, in any event, plaintiffs' remedy should have been limited to money damages.

The property in question is part of the Amended Plat of Hawkins Heights in Eugene, and is subject to the following restrictions:

"1. Said lots (the lots in the Amended Plat of Hawkins Heights) shall be used exclusively for residential purposes and not more than one single-family residential structure shall be erected or maintained on any lot * * * .

" * * * . (

"11. For the purposes of these restrictions, the word 'lot' or 'lots' as used herein, shall consist of any platted lot or two adjacent lots or portion of two adjacent lots held under one ownership as a location for one residential structure."

Defendant, who owned six lots, obtained the approval of the city authorities to resubdivide those six lots into an eight-lot subdivision. He has constructed single-family residences on some of the eight lots. Plaintiffs objected when construction began on the two houses at issue here, and filed this suit shortly thereafter.

Whether defendant has violated the restrictions depends upon their proper construction. An illustrative sketch will help to explain the dispute.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In this sketch, which illustrates the general nature of the dispute without reproducing the contours of the affected lots in detail, the boundaries between three original lots (A, B, and C) are indicated by dotted lines. Solid lines designate the boundaries between lots 1, 2, 3, 4, and 5 of the new subdivision.

Plaintiffs did not object when defendant built houses on lots 1, 3, and 5. They had no grounds to do so, they say, because the restrictions were not violated at that time; there was only one house on each of the original lots. However, when defendant began construction on lots 2 and 4, plaintiffs objected that the two additional houses would violate Paragraph 1 of the restrictions, which provides that "not more than one single-family residential structure shall be erected * * * on any lot * * * ." Defendant contends that there is no violation because lots 2 and 4 each consist of a "portion of two adjacent lots held under one ownership," and each is thus a "lot" as defined in Paragraph 11.

We cannot adopt defendant's position. It focuses on lots 2 and 4 of the new subdivision as permissible building sites under the language of Paragraph 11, and ignores the status of lots 1, 3, and 5. Each of those lots is but a portion of one of the original lots. Paragraph 11 does not define "lot" to permit the construction of a residence on a portion of a single lot. Every "lot" as there defined must either consist of an original platted lot or must contain portions (or the whole) of two original adjacent platted lots.

By limiting permissible construction to one residence on any one lot, the drafters of these restrictions apparently intended to limit the overall density within the subdivision. However, by defining "lot" to include "any * * * portion of two adjacent lots held under one ownership," they apparently also intended to permit the original lots to be redivided, but only if each new lot contains parts of two adjacent original lots.

This is, to be sure, a somewhat indirect way of expressing a density limitation. Our interpretation of the restrictions does, however, give direct effect to the language of both of the relevant paragraphs of the restrictions. Construed in this way, those two paragraphs, together with the provisions for minimum house size and minimum setbacks, ¹ effectively limit the overall density of the subdivision.

When defendant constructed residences on lots 1, 3, and 5 of the new subdivision, he had built a residence on each of the three original lots. He was not entitled, under the restrictions, to treat a fraction of each of those lots as a permissible building site and thus create two additional lots which, considered in isolation, are in literal compliance with Paragraph 11.

In support of his position, defendant relies on the rule that:

" * * * because of the public policy favoring untrammeled land use, such restrictions are construed most strongly against the covenant and will not be enlarged by construction." Aldridge v. Saxey, 242 Or. 238, 242, 409 P.2d 184, 186 (1965).

We have recognized and applied that rule many times. See, e. g., Johnson v. Campbell, 259 Or. 444, 447, 487 P.2d 69 (1971); Smoke v. Palumbo, 234 Or. 50, 52, 379 P.2d 1007 (1963); Rodgers et ux. v. Reimann et ux., 227 Or. 62, 65, 361 P.2d 101 (1961); Schmitt et ux. v. Culhane et al., 223 Or. 130, 354 P.2d 75 (1960); Hall v. Risley and Heikkila, 188 Or. 69, 87-88, 213 P.2d 818 (1950); Crawford et al. v. Senosky et al., 128 Or. 229, 232, 274 P. 306 (1929); Grussi v. Eighth Ch. of Christ, Scientist, 116 Or. 336, 342, 241 P. 66 (1925).

We are doubtful, however, whether we should continue to do so. Public policy, as expressed in recent legislation, no longer favors "untrammeled land use," but requires the careful public regulation of the use of all of the land within the state. See especially, ORS chapter 197.

In this case we need not inquire whether this legislative expression of public land use policy requires a new approach to the construction of private restrictions on the use of land. Even under the traditional rule, upon which defendant relies, a "construction in favor of the unrestricted use of property must be reasonable." Hall v. Risley and Heikkila, supra 188 Or. at 87, 213 P.2d at 826. As we have pointed out, defendant's proposed construction of Paragraph 11 is not reasonable because it would result in building sites composed of a fraction of a single lot, contrary to the express provisions of Paragraph 11.

We hold, then, that the trial court was correct in its conclusion that defendant violated the restrictions applicable to the Amended Plat of Hawkins Heights.

We further hold that the trial court correctly concluded that defendant had not established his affirmative defenses of waiver and estoppel.

Defendant contends that plaintiffs waived any right to complain by failing to act promptly to enforce their rights, and by failing to bring suit before he had made substantial expenditures. He points out that the suit was not filed until approximately a year and a half after he first applied for approval of his eight-lot subdivision, and slightly more than a year after final approval was received.

There was no evidence that any of the plaintiffs had notice of the application for or approval of the new subdivision. Although they were aware that the defendant had built three houses (on lots 1, 3, and 5 of the new subdivision), that construction was not, as pointed out above, in violation of the restrictions. So far as the record shows, the first notice that any of the plaintiffs had that defendant intended to construct more houses than the restrictions permit was some time in October, 1975. Plaintiff Swaggerty testified that he first learned of the prospective violations when he noticed preliminary excavation for foundations at the sites of the houses in question. He did not testify to the exact dates of his observations, but they must have been made some time shortly before October 15 when defendant testified that the first concrete was poured for the foundations.

On October 17, plaintiff Swaggerty's attorney wrote to defendant, warning him that Swaggerty contended the restrictions were being violated, and that a suit for injunction would be brought if construction did not cease immediately. Defendant did not reply to this letter until October 27, when his attorney wrote to Swaggerty's attorney. This letter took the position that defendant, for various reasons, had a right to proceed with the construction. Defendant did so, but during the latter part of October he held a meeting in his home to which property owners in the subdivision were invited to discuss their objections to defendant's development. Among other objections, complaints about violations of the density restrictions were made at that meeting. Defendant's attorney, who attended the meeting, contended that the two additional houses would not violate the restrictions.

This suit was filed on November 4, 1975. There was no undue delay by the plaintiffs. The beginning of the construction was the first notice to these plaintiffs that a violation of the restrictions was threatened. Suit was filed approximately three weeks later. Nothing occurred during that period to lead defendant to believe that Swaggerty did not intend to follow through on his original complaint, and other property owners also complained...