Vierk v. Ritenour

• Decision Date: 08 March 1961
• Docket Number: No. 1,No. 19312,19312,1
• Citation: 172 N.E.2d 679,131 Ind.App. 547
• Parties: Norman A. VIERK and Gerald Rausch and Louis Rausch, d/b/a G. and L. Rausch Construction Company, Appellants, v. Richard D. RITENOUR, Robert H. Kneal, Patricia A. Kneal, Zinn Manufacturing, Inc., Barbara B. Godfrey, Clarence R. Tennell, Dolores Tennell, John K. Quinlan, Patricia L. Quinlan, Corydon H. Hall, Georgia W. Hall, David L. Berk, Jean Berk, Cleona Barr, Ernest G. Barr, Richard Welgle, Dorothy Weigle, Leo V. Kline, Lois V. Kline, Edgar E. Tucker, Frances L. Tucker, Appellees
• Court: Indiana Appellate Court

Page 679

172 N.E.2d 679

131 Ind.App. 547

Norman A. VIERK and Gerald Rausch and Louis Rausch, d/b/a G and L. Rausch Construction Company, Appellants, v. Richard D. RITENOUR, Robert H. Kneal, Patricia A. Kneal Zinn Manufacturing, Inc., Barbara B. Godfrey, Clarence R Tennell, Dolores Tennell, John K. Quinlan, Patricia L Quinlan, Corydon H. Hall, Georgia W. Hall, David L. Berk, Jean Berk, Cleona Barr, Ernest G. Barr, Richard Welgle, Dorothy Weigle, Leo V. Kline, Lois V. Kline, Edgar E. Tucker, Frances L. Tucker, Appellees.

No. 19312.

Appellate Court of Indiana, Division No. 1.

March 8, 1961.

Warren B. Thompson, Mark L. Thompson, Lafayette, for appellants.

Stanton Babcock, Lafayette, Stuart, Branigin, Ricks & Schilling, Lafayette, of counsel, for appellees.

COOPER, Judge.

This appeal is from an action brought by the appellees herein to enjoin the appellants from erecting a building in violation of a certain restrictive covenant incorporated in the deed to the site of the proposed building.

The issues were formed by the complaint in three paragraphs and the appellants' answers thereto. Cause was submitted to the court for trial and the court found for the appellees on paragraph one of their complaint. Paragraph two of complaint was dismissed and the court found against the appellees on the third paragraph of complaint. The pertinent part of the court's judgment on paragraph one reads, as follows:

'* * * the Court being duly and sufficiently advised in the premises, now finds for the plaintiffs that the allegations of Paragraph One of the plaintiffs' complaint are true; that the restriction and condition contained in the plat of Richard Ritenour's Sub-Division to the City of West Lafayette, as more particularly set forth in rhetorical paragraph four of paragraph one of plaintiffs' complaint, is a valid existing restrictive covenant; that the defendants have caused a building to be erected upon Lots numbered 10, 11, 12, 13 and 14 of Richard Ritenour's Sub-Division to the City of West Lafayette, Indiana, in violation of the restriction contained in the plat of said Sub-Division as set forth in rhetorical paragraph four of paragraph one of plaintiffs' complaint; that defendants should be enjoined from erecting any building in the Richard Ritenour's Sub-Division to the City of West Lafayette, Indiana, unless and until said defendants shall abide by the provisions of the restriction contained in the plat of the Richard Ritenour's Sub-Division to the City of West Lafayette, Indiana, as set forth in rhetorical paragraph four of paragraph one of plaintiffs' complaint and that the defendant, Norman Vierk, should be compelled to alter, modify, or remodel any and all existing building on lots numbered 10, 11, 12, 13 and 14 owned by him in said Sub-Division to comply with said restrictive covenant, or to remove said building from said lots.

'It Is Therefore Ordered, Adjudged And Decreed by the Court that the defendants be and they are hereby perpetually enjoined from erecting any building in Richard Ritehour's Sub-Division to the City of West Lafayette unless and until the design, location, and cost thereof shall have been approved in writing by a committee elected by a majority of the owners of lots in said Sub-Division, or unless and until said committee, or its successor, has failed to either approve or dis-approve the design, location and cost thereof for thirty days after submission of such information to it.

'And It Is Further Ordered, Adjudged And Decreed, that the defendant, Norman Vierk, be and he is hereby ordered to alter, modify or remodel any and all existing building on Lots numbered 10, 11, 12, 13 and 14, owned by him in the Richard Ritenour Sub-Division to West Lafayette, Indiana, to comply with the requirements of the following covenant:

"No building shall be erected in this Sub-Division until the design, location and cost thereof shall have been approved in writing by a committee elected by a majority of the owners of lots in said Sub-Division; however, in the event that said committee fails to approve or disapprove such design, location and cost within 30 days after submission to it, then such applicant may build without such approval,'

'or to remove said building from said lots. * * *' Thereafter, within the time allowed, the appellants filed their motion for a new trial, the material part reading as follows:

'1. That the decision of the Court was not sustained by sufficient evidence.

'2. That the decision of the Court is contrary to law.

'3. Error of law occurring at the trial in this: That the Court was influenced in arriving at its decision by the testimony of the witness Maurice R. Winfield as to the damage to the valuation of the plaintiffs' property, in support of paragraph two of the plaintiffs' complaint, which said paragraph was later dismissed and which said testimony was not admissible in support of either of the other paragraphs of said complaint.

'4. Error of law occurring at the trial in this: That the Court was influenced in arriving at its decision by the testimony of the witness Charles W. Shook as to the damage to the valuation of the plaintiffs' property in support of paragraph two of the plaintiffs' complaint which said paragraph was later dismissed and which said testimony was not admissible in support of either of the other paragraphs of complaint.'

The aforesaid motion was overruled. The error assigned before us is the overruling of the motion for new trial.

At the outset we note that the appellants have waived specifications numbered 1, 3 and 4 of said motion for new trial by failing to discuss each of those propositions in the Argument portion of their brief. See § 2677, Flanagan, Wiltrout and Hamilton's, Indiana Trial and Appellate Practice, Comment No. 1 (1959 Supp.), and authorities therein cited.

The sole question before us is this: Is the decision of the court contrary to law? The appellants' main contention upon this proposition, as stated in their brief, is 'this restriction, viewed in the light of the facts and circumstances in this case, is too vague and uncertain to be upheld'.

The record reveals that the following Stipulation of Facts was entered into the evidence in this cause:

'It is agreed and stipulated by the parties hereto that the following statements are true and that they and the attached exhibits shall, for purposes of determining the issues raised by legal paragraphs one and three of plaintiffs' complaint and the answers thereto, be considered by the court as true:

'1. Richard Ritenour's Subdivision to the City of West Lafayette, Indiana, was duly platted and entered of record in the office of the Recorder of Tippecanoe County, in Plat Book 5, Page 21-A on November 13, 1951 and re-recorded in Plat Book 3, Page 32-A on September 17, 1952. A copy of said plat, as recorded on November 13, 1951, is attached hereto as Exhibit A.

'2. The only change made in the re-recorded plat was to reduce the minimun first floor area stated in 3(B) from 1200 to 1000 square feet.

'3. That plaintiffs are now, and were at the time this suit was filed, the owners collectively of lots 1, 3, 4, 5, 6, 7, 8, 9, 15, 16, 18, 19, 20, and 21 and the defendant, Norman A. Vierk, the owner of lots 10, 11, 12, 13, and 14 in said subdivision.

'4. That the defendant, Norman S. Vierk, acquired title to said lots 10, 11, 12, 13 and 14 from Richard Ritenour, developer of Richard Ritenour's Subdivision, between the dates November 21, 1955 and August 28, 1956; that all of the deeds to him and to the plaintiffs contained the following provision:

'Subject to building and occupancy restrictions and public utility easements provided in the recorded plat of said subdivision as appears in Plat Book 5, page 21-A.' 'that the defendant, Norman A. Vierk, and his wife conveyed lot 14 in said subdivision to Fred L. Clark and Ina L. Clark, husband and wife, on September 28, 1956, and that said deed contained the provision quoted immediately above; that said lot 14 was reconveyed to the defendant, Norman A. Vierk, on May 9, 1958.

'5. That at the time this suit was filed there were residences constructed on lots 1, 8, 15, 16, 17, 18, 19, 20, and 21, and that all such residences were occupied; that they were all single-family dwellings; that all other lots in the subdivision were unimproved.

'6. The Richard Ritenour's Subdivision is located in a residential area and that there are no businesses located on any adjoining tracts; that there are no multiple family dwellings located in said subdivision other than that being constructed by the defendants, nor are there any such dwellings located in adjoining subdivisions.

'7. That no committee was ever elected by the owners of lots in Richard Ritenour's Subdivision, or by any of them, prior to May 5, 1958, and that the residences located in said subdivision on that date were constructed without design, location, or cost thereof being first approved by any committee representing the owners of lots in the subdivision, or any papers or plans disclosing the design, location, or cost being first submitted to such a committee.

'8. That on May 3, 1958 at approximately 1:00 o'clock P.M., a building permit was issued by the City of West Lafayette, Indiana, to the defendant, Norman A. Vierk, for the construction of a building on the lots owned by him in Richard Ritenour's Subdivision in accordance with the plans attached hereto, made a part hereof, and marked Exhibit B1, B2, B3, B4, and B5.

'9. That no work was done at the building site in preparation for the construction of said building until May 5, 1958, and that none...