Taylor v. Melton, 17228

• Decision Date: 04 October 1954
• Docket Number: No. 17228,17228
• Citation: 274 P.2d 977
• Parties: Delford TAYLOR and Alameda M. Taylor, Plaintiffs in Error, v. Clarence F. MELTON, Cleo Melton, William W. Murphy, Louise Murphy, Goldie R. Prinster, and Doris A. Snyder, Defendants in Error.
• Court: Colorado Supreme Court

Page 977

274 P.2d 977

130 Colo. 280

Delford TAYLOR and Alameda M. Taylor, Plaintiffs in Error, v. Clarence F. MELTON, Cleo Melton, William W. Murphy, Louise Murphy, Goldie R. Prinster, and Doris A. Snyder Defendants in Error.

No. 17228.

Supreme Court of Colorado, En Banc.

Oct. 4, 1954.

Rehearing Denied Nov. 1, 1954.

Moynihan, Hughes & Bjelland, Montrose, for plaintiffs in error.

Adams, Heckman & Traylor, Grand Junction, for defendants in error.

MOORE, Justice.

We will hereinafter refer to the parties as they appeared in the trial court, where plaintiffs in error were defendants and defendants in error were plaintiffs.

Plaintiffs in their complaint alleged, in substance, that one Fairley, who was the owner of a parcel of land, platted and subdivided the same, and a map thereof was filed February 4, 1941, with the county clerk and recorder of Mesa county; that on the map said tract of land was divided into numerous lots and streets; that Fairley sold a poriton of the tract to Howard J. Nesbitt and Mildred A. Nesbitt, the deed to which was dated March 20, 1941, and thereafter recorded; and that said deed contained the following restrictions:

'That grantees agree that neither they nor their successors and assigns will construct a residence on the above-described land at a cost of less than $2500.00, and that they will not during a period of 20 years from the date hereof keep or permit to be kept on said land any horses, cattle, sheep or goats or pigs. The grantor agrees that he will not build nor permit to be built upon any of the land now standing in his name in the NW 1/4 NE 1/4 NW 1/4 of Sec. 26 Twp 1 S R1W Ute Meridian any structure other than a residence of a construction value of not less than $2500.00 and the incidental outbuildings after said residence of not less than $2500.00 has been built, provided, however, that this restriction does not apply to that portion of the NW 1/4 NE 1/4 NW 1/4 of said Section 26 described as the W 1/2 SW 1/4 NE 1/4 NW 1/4 said Sec. 26. The above restriction is a covenant running with the land, and is binding upon the grantor herein, his successors and assigns forever.'

It further was alleged in the complaint that plaintiffs are owners of certain lots in said Fairley Addition and that defendants are the owners of Block 3 thereof; that plaintiffs and defendants, respectively, acquired their titles to said lots or parcels of land with notice and knowledge of the restrictions set forth in the deed to Howard J. Nesbitt and Mildred A. Nesbitt; that notwithstanding such restrictions, defendants in February, 1952, 'planned and commenced, and unless restrained by the order of this court, intend to and will complete a structure to be utilized as a used car lot for the purchase and sale of used automobiles, in violation of said restrictions.'

Defendants denied that they had knowledge of any restrictions, and alleged that the deed conveying Block 3 to them contained none; admitted that they were engaged in the used car business on said Block 3; denied that such use of the premises was prohibited; and alleged that any restrictions claimed by plaintiffs were not binding on them.

The findings and judgment of the trial court contained, inter alia, the following:

'That plaintiffs Murphy, Prinster and Snyder bought lots and improved the same by building houses thereon subsequent to the deed to Nesbitt, and with knowledge of the restrictions contained therein, while some of the deeds did not specifically mention the restrictions, others did.

'The Court further finds that defendants Taylor purchased said Block 3 with knowledge that there were certain restrictions which covered the larger portion of the ten-acre tract, of which Block 3 was a portion as evidenced by the statement of Delford Taylor on the witness stand that when he was contemplating purchasing, a discussion of restrictions with Fairley was had, that Fairley had told him he had been putting restrictions on deeds, but would not do so in this particular case if defendant wished to buy, that in addition to the above personal notice, he had constructive notice of said restrictions in accordance with the Recording Acts of the State of Colorado, that defendants were furnished an abstract of title to said Block 3 which contained a copy of the map and plat, a copy of the original Nesbitt deed which contained the original restrictions.

'The Court further finds that there was no general intent to abandon the original scheme or restrictions shown by the evidence, that while there were signs placed on the premises, that on the whole the original plan with the restrictions was carried out.

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'In the judgment of the Court, the restrictions contained in the Nesbitt deed were binding upon all of the property then owned by said Fairley with the exception of those parts of the general tract which were specifically excepted, and that the plain meaning of the restrictions was that no structures of any kind other than a dwelling to cost at least $2500.00 and the necessary outbuildings could be constructed thereon, that the word 'Dwelling' was meant to be construed in its ordinary sense as a house occupied as a residence, and that such a restriction would be violated in the building of a filling station and the use of the premises for the sale of used and second-hand cars.

'That the restrictions contained in said deed were binding upon all subsequent purchasers in whosesoever hands it may be, provided the parties, both grantee and grantor, understood the nature and burden of the restriction and had notice thereof either actual or constructive, and in this particular case, defendants had such actual and constructive notice.

'That in this particular case there was a general scheme for building for development of the intended tract, or development was intened by the original grantor, and that subsequent grantees are proper parties and are entitled to bring an action against each other to enforce the restrictive covenants, that the general plan has been maintained from its inception and acted upon by plaintiffs herein, and relied upon by them, hence is enforceable on all; that the said restriction was specifically a restrictive covenant running with the land and binding upon the grantor Fairley, his successors and assigns.

'The Court further found from the evidence as produced from the witness stand and from personal inspection of the premises, particularly Block 3, a building thereon, a one-room small building used as an office, and a number of cars parked on said lot, and the same was being used as a used and new automobile sales lot, that in addition to the above, defendants had built a cinder block building with a composition roof, a building of proper size for a home, but that the same was not yet completed, there being no floors or partitions built in the building.

'Wherefore, It Is Ordered, Adjudged and Decreed by the Court that the prayer of plaintiffs restraining defendants from the use of said premises as a used car lot or as a filling station for the purpose of selling oils, gases, greases and the like, and that the small one-room building used as an office, be...