Western Land Co. v. Truskolaski

Decision Date31 March 1972
Docket NumberNo. 6562,6562
Citation88 Nev. 200,495 P.2d 624
PartiesWESTERN LAND CO., Ltd., Appellant, v. Leonard TRUSKOLASKI et al., Respondents.
CourtNevada Supreme Court

Vargas, Bartlett & Dixon, and Jon J. Key, Reno, for appellant.

Breen, Young, Whitehead & Hoy, Reno, for respondents.

OPINION

BATJER, Justice:

The respondents, homeowners in the Southland Heights subdivision in southwest Reno, Nevada, brought an action in the district court to enjoin the appellant from constructing a shopping center on a 3.5-acre parcel of land located within the subdivision at the northeast corner of Plumas and West Plumb Lane. In 1941 the appellant subdivided the 40-acre development, and at that time it subjected the lots to certain restrictive covenants which specifically restricted the entire 40 acres of the subdivision to single family dwellings and further prohibited any stores, butcher shops, grocery or mercantile business of any kind. 1 The district court held these restrictive covenants to be enforceable, and enjoined the appellant from constructing a supermarket or using the 3.5 acres in any manner other than that permitted by the covenants. The appellant contends that the district court erred in enforcing these covenants because the subdivision had so radically changed in recent years as to nullify their purpose. We agree with the holding of the district court that the restrictive covenants remain of substantial value to the homeowners in the subdivision, and that the changes that have occurred since 1941 are not so great as to make it inequitable or oppressive to restrict the property to single-family residential use.

In 1941 the Southland Heights subdivision was outside of the Reno city limits. The property surrounding the subdivision was primarily used for residential and agricultural purposes, with very little commercial development of any type in the immediate area. At that time Plumb Lane extended only as far east as Arlington Avenue.

By the time the respondents sought equitable relief in an effort to enforce the restrictive covenants, the area had markedly changed. In 1941 the city of Reno had a population of slightly more than 20,000 that figure had jumped to approximately 95,100 by 1969. One of the significant changes, as the appellant aptly illustrates, is the increase in traffic in the surrounding area. Plumb Lane had been extended to Virginia Street, and in 1961 the city of Reno condemned 1.04 acres of land on the edge of the subdivision to allow for the widening of Plumb Lane into a fourlane arterial boulevard. A city planner, testifying for the apellant, stated that Plumb Lane was designed to be and now is the major east-west artery through the southern portion of the city. A person who owns property across Plumas from the subdivision testified that the corner of Plumb Lane and Plumas is 'terribly noisy from 5:00 p.m. until midnight.' One of the findings of the trial court was that traffic on Plumb Lane had greatly increased in recent years.

Another significant change that had occurred since 1941 was the increase in commercial development in the vicinity of the subdivision. On the east side of Lakeside Drive, across from the subdivision property, is a restaurant and the Lakeside Plaza Shopping Center. A supermarket, hardware store, drug store, flower shop, beauty shop and a dress shop are located in this shopping center. Still further east of the subdivision, on Virginia Street, is the Continental Lodge, and across Virginia Street is the Park Lane Shopping Center.

Even though traffic has increased and commercial development has occurred in the vicinity of the subdivision, the owners of land within Southland Heights testified to the desirability of the subdivision for residential purposes. The traffic density within the subdivision is low, resulting in a safe environment for the children who live and play in the area. Homes in Southland Heights are well cared for and attractively landscaped.

The trial court found that substantial changes in traffic patterns and commercial activity had occurred since 1941 in the vicinity of the subdivision. Although it was shown that commercial activity outside of the subdivision had increased considerably since 1941, the appellant failed to show that the area in question is now unsuitable for residential purposes.

Even though nearby avenues may become heavily traveled thoroughfares, restrictive covenants are still enforceable if the single-family residential character of the neighborhood has not been adversely affected, and the purpose of the restrictions has not been thwarted. Burden v. Lobdell,93 Ill.App.2d 476, 235 N.E.2d 660 (1968); Gonzales v. Gackle Drilling Company, 67 N.M. 130, 353 P.2d 353 (1960); Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132 (1931). Although commercialization has increased in the vicinity of the subdivision, such activity has not rendered the restrictive covenants unenforceable because they are still of real and substantial value to those homeowners living within the subdivision. West Alameda Heights H. Ass'n v. Board of Co. Com'rs, 169 Colo. 491, 458 P.2d 253 (1969); Burden v. Lobdell, supra; Hogue v. Dreeszen, 161 Neb. 268, 73 N.W.2d 159 (1955).

The appellant asks this court to reverse the judgment of the district court and declare as a matter of law that the objects and purposes for which the restrictive covenants were originally imposed have been thwarted, and that it is now inequitable to enforce such restrictions against the entity that originally created them. This we will not do. The record will not permit us to find as a matter of law that there has been such a change in the subdivision or for that matter in the area to relieve the appellant's property of the burden placed upon it by the covenants. There is sufficient evidence to sustain the findings of the trial court that the objects and purposes of the restrictions have not been thwarted, and that they remain of substantial value to the homeowners in the subdivision.

The case of Hirsch v. Hancock, 173 Cal.App.2d 745, 343 P.2d 959 (1959) as well as the other authorities relied upon by the appellant (Key v. McCabe, 54 Cal.2d 736, 8 Cal.Rptr. 425, 356 P.2d 169 (1960); Strong .v Hancock, 201 Cal. 530, 258 P. 60 (1927); Downs v. Kroeger, 200 Cal. 743, 254 P. 1101 (1927)) are inapposite for in those cases the trial court found many changes within as well as outside the subdivision and concluded from the evidence that the properties were entirely unsuitable and undersirable for residential use and that they had no suitable economic use except for business or commercial purposes, and the appellate courts in reviewing those cases held that the evidence supported the findings and sustained the judgments of the trial courts.

On the other hand, in the case of West Alameda Heights, H. Ass'n v. Board of Co. Com'm, supra, upon facts similar to those found in this case, the trial court decided that the changed conditions in the neighborhood were such as to render the restrictive covenants void and unenforceable. The appellate court reversed and held that the trial court misconceived and misapplied the rule as to change of conditions and said, 169 Colo. at 498, 458 P.2d at 256: 'As long as the original purpose of the covenants can still be accomplished and substantial benefit will inure to the restricted area by their enforcement, the covenants stand even though the subject property has a greater value if used for other purposes.' See also Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545 (1931); Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529 (1938); Finley v. Batsel, 67 N.M. 125, 353 P.2d 350 (1960); Southwest Petroleum Co. v. Logan, 180 Okl. 477, 71 P.2d 759 (1937); Burden v. Lobdell, supra.

There is substantial evidence in the record to support the trial court's findings of fact and conclusions of law that the...

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11 cases
  • Gladstone v. Gregory
    • United States
    • Nevada Supreme Court
    • June 25, 1979
    ...valid restrictive covenant must be so fundamental as to thwart the original purpose of the restriction. Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624 (1972); Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751 (1958); Sandstrom v. Larsen, 583 P.2d 971 (Hawaii 1978); South Shore Homes A......
  • C & A Invs. v. Jiangson Duke, LLC
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    ... ... used for other purposes." W. Land Co. v ... Truskolaski, 88 Nev. 200, 205, 495 P.2d 624, 627 (1972) ... (quoting W ... ...
  • In re Beatty
    • United States
    • U.S. District Court — Virgin Islands
    • January 27, 1975
    ...circumstances far greater than those urged here have been found insufficient to lift the restriction. Thus, in Western Land Co. v. Truskolaski, 495 P.2d 624 (Nev. 1972), the restrictions were found still valid and valuable despite the fact that the court found evidence that a huge, major tr......
  • Sellman Auto, Inc. v. McCowan, 6977
    • United States
    • Nevada Supreme Court
    • September 10, 1973
    ...they will not be disturbed on appeal. Lyon v. Walker Boudwin Constr. Co., 88 Nev. 646, 503 P.2d 1219 (1972); Western Land Co. v. Truskolaski, 88 Nev. 200, 495 P.2d 624 (1972). (b) The Effect of the Sellman next contends that the effect of the express warranty was nullified by the disclaimer......
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2 books & journal articles
  • STALE REAL ESTATE COVENANTS.
    • United States
    • William and Mary Law Review Vol. 63 No. 6, May 2022
    • May 1, 2022
    ...Explaining Contingent Rights: The Puzzle of "Obsolete" Covenants, 91 COLUM. L. REV. 546 (1991). (135.) See W. Land Co. v. Truskolaski, 495 P.2d 624, 626 (Nev. 1972). ULI's 1964 Homes Association Handbook explicitly criticizes Downs v. Kroeger, 254 P. 1101 (Cal. 1927), in which the court hel......
  • A Walk Through the Woods of the Property Course With Dukeminier and Krier's Casebook on Property
    • United States
    • Seattle University School of Law Seattle University Law Review No. 22-03, March 1999
    • Invalid date
    ...1950). 40. DUKEMINIER AND KRIER, supra note 2, at 857-58. 41. Id. at 863-67. 42. Id. at 880-90. 43. Id. at 891-902. 44. Id. at 902-07. 45. 495 P.2d 624 (Nev. 46. DUKEMINIER AND KRIER, supra note 2, at 911. 47. Id. at 919-40. 48. Id.at 739-1210. 49. Id.at 13. 50. Id.at 25. 51. Id.at 155, 163......

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