Turner v. Caplan, Record No. 031950.

• Decision Date: 10 June 2004
• Docket Number: Record No. 031950.
• Citation: 268 Va. 122,596 S.E.2d 525
• Parties: Robert E. TURNER, III v. Michael A. CAPLAN, et al.
• Court: Virginia Supreme Court

596 S.E.2d 525

268 Va. 122

Robert E. TURNER, III v. Michael A. CAPLAN, et al.

Record No. 031950.

Supreme Court of Virginia.

June 10, 2004.

Stephen G. Bass (Carter, Craig, Bass, Blair & Kushner, on brief), Danville, for appellant.

Randy W. Sinclair, Danville, for appellees.

Present: All the Justices.

OPINION BY Justice Donald W. LEMONS.

In this appeal, we consider the proper construction of certain restrictive covenants and exceptions thereto. Also, we consider whether the pasturing of a horse on certain lots within the subdivision in question constitutes a nuisance.

I. Facts and Proceedings

In 1975, Robert E. Turner, III ("Turner") acquired a 101.4 acre tract of land in Pittsylvania County, Virginia, and thereafter established a subdivision known as Windermere. This dispute concerns the use of Lots 4B, 5, 6, and 7 in Section D of the subdivision which will be referred to herein as the "pasture."

In 1979, Turner recorded a declaration of protective covenants, restrictions, and conditions (the "Agreement") of which relevant portions provide:

1. All of the lots above described shall be used exclusively for residential purposes.

. . . . .

3. Only one single family dwelling may be erected on any lot, but in addition thereto, there may be erected a car garage and other structures incidental to the use of such property for residential purposes.

. . . . .

5. No nuisance shall be maintained or permitted on any of said lots.

6. There shall be no raising or harboring of pigs, goats, sheep, cows, or any other livestock or poultry on said lots, with the exception of a usual domestic pet. This restriction shall not be applicable to Lots Nos. 1-7, inclusive, Section D.

Covenant 10 further specifies that should a court invalidate any one of the Agreement's covenants, all others remain in full force and effect.

Turner sold most of Windermere's lots; however, he retained ownership of the pasture. Michael and Carol Caplan ("the Caplans") and Grady and Martha Carrigan ("the Carrigans") reside on lots adjoining the pasture.

At some time in the early 1980's, Turner kept a horse on the pasture for approximately six months. Again, in the late 1990's a horse was periodically kept on the pasture. Finally, since 2002 a horse has been kept periodically on the pasture depending upon the time of year and the weather.

In 2002, the Caplans filed a bill of complaint for injunctive relief with the Circuit Court of Pittsylvania County asking the court to permanently enjoin Turner from placing a horse on the pasture. Thereafter, the trial court granted the Carrigans' motion to intervene in the lawsuit.

The trial court held that the maintenance of a horse on the pasture violated the Agreement because it was inconsistent with the intent to create a residential subdivision and because the trial court held that keeping a horse at that location constituted a nuisance. The trial court entered a permanent injunction forbidding Turner from keeping a horse on the pasture. Turner appeals the adverse judgment of the trial court and alleges that the trial court erred in its judgment that maintaining a horse on the pasture was inconsistent with the intent of the Agreement, that the specific exception from the ban upon livestock for the pasture was unreasonable, and that keeping a horse on the pasture was a nuisance.

II. Standard of Review

The trial court's order presents findings of fact and law. We will not disturb its factual findings unless they are plainly wrong. The trial court's interpretation of the restrictive covenants is, however, a question of law, and we review those conclusions de nova See Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 396, 398 (1984)

.

III. Analysis

The trial court found that Turner intended to create an exclusively residential neighborhood when he formed the Windermere subdivision. The trial court further concluded that placing livestock on any of Windermere's lots is inconsistent with this intent.

Covenant 1 of the Agreement is clear and unambiguous in restricting Windermere's lots exclusively for residential purposes;¹ however, Covenant 1 is subject to an equally clear and unambiguous exception in Covenant 6. Covenant 1 states that all of the lots "shall be used exclusively for residential purposes." Covenant 6 prohibits raising or harboring of livestock or poultry on the lots but further states that, "[t]his Restriction shall not be applicable to Lots Nos. 1-7, inclusive, Section D," which includes the pasture. We must construe the Agreement as a whole and, if possible, interpret its provisions consistently with one another. First American Title Ins. Co. v. Seaboard Say. & Loan Ass'n, 227 Va. 379, 386, 315 S.E.2d 842, 846 (1984); Tate v. Tate, 75 Va. 522, 527 (1881). In First American Title, we said:

it is the duty of the court to construe the [Agreement] as a whole, and in the performance of this duty it will not treat as meaningless any word thereof if any meaning, reasonably consistent with other parts of the [Agreement], can be given.

227 Va. at 386, 315 S.E.2d at 846 (quoting Pilot Life Ins. Co. v. Crosswhite, 206 Va. 558, 561, 145 S.E.2d 143, 146 (1965)).

Adhering to this principle, we hold that Covenant l's residential purpose, when read in context with Covenant 6, does not exclude raising or harboring livestock or poultry. Such activity is prohibited under Covenant 6 for all lots except Lots 1 through 7 of Section D, which includes the lots comprising the pasture. Turner's reservation of this right is clearly expressed.

Further, Turner states that the trial court erred in holding that exempting the pasture from the covenant forbidding raising or harboring livestock or poultry is unreasonable. While we are aware of case law holding that use of property may not be unreasonably restricted, see Hercules Powder Co. v. Continental Can Co., 196 Va. 935, 939, 86 S.E.2d 128, 131 (1955),

counsel and the trial court cite no cases applying the concept of "unreasonahility" to the exemptions specifically allowing the use of restricted land for particular purposes.

In holding the exemption unreasonable, the trial court apparently relied on the fact that Turner, as the original grantor/owner, is the only Windermere landowner exempted from Covenant 6's restriction. This assumption is incorrect because the exception to restrictions in Covenant 6 applies to Lots 1 through 7 of Section D. The Carrigans, who are appellees herein, own Lots 1 and 2B.

Additionally, the property owners knew at the time they purchased the lots, and assented to Windermere's covenants, that Lots 1 through 7 had been exempted from the livestock restriction. Presumably...