Zavislak v. Shipman

Decision Date03 July 1961
Docket NumberNo. 19430,19430
Citation147 Colo. 184,362 P.2d 1053
PartiesTheodore J. ZAVISLAK and Margaret A. Zavislak, Plaintiffs in Error, v. Mark K. SHIPMAN, Elaine A. Shipman, Littleton Savings and Loan Association, a corporation, Charles M. Holmes and Leroy Bacon, Defendants in Error.
CourtColorado Supreme Court

George F. Barbary, Denver, for plaintiffs in error.

Wood, Ris & Hames, Denver, for defendants in error.

DAY, Justice.

We will refer to the parties by name.

This was an action by the Shipmans, defendants in error, to remove a cloud from and to quiet their title to certain real estate subdivided and platted by the Shipmans in Jefferson County as Beau Vue Ranchettes. As grounds for the relief sought the Shipmans relied upon various changes having occurred subsequent to a previous subdivision of the identical property platted as Beau Vue. They sought equitable relief in the nature of a decree relieving the property of certain restrictive covenants which had been imposed upon the land in the former plat. The Zavislaks were named as defendants as being owners of lot one in block one, Beau Vue, they being the only persons who had purchased a lot in the original Beau Vue plat. Their land was not included in the new Ranchettes plat, but they were demanding continuation of the restrictive covenants contained in the Beau Vue plat and withheld their consent to any change.

By counterclaim the Zavislaks sought an order enforcing the restrictive covenants and an injunction to prevent the Shipmans from in any manner changing or altering the restrictions as contained in the original plat.

In an amended counterclaim, designated as an additional paragraph, the Zavislaks alleged that the acts of the plaintiff 'constitute a repudiation of their legal and equitable duties to refrain from violating the restrictive covenants of Beau Vue which defendants now elect to treat as a breach and as a consequence of which defendants have been damaged in the sum of $9000.00.'

Both parties assign error to the judgment and decree of the court.

In awarding judgment in favor of the Shipmans, the court, after extensive findings of fact, entered a decree removing the cloud of the restrictions and quieting the title of plaintiffs to Beau Vue Ranchettes, except that they were ordered to retain the original covenants as to the whole of block one in which the Zavislak's lot is located. To this the Shipmans agreed. Damages of $2,500 against the Shipmans was awarded in favor of the Zavislaks and judgment entered thereon, which the Shipmans contest by cross error. The Zavislaks challenge the decree lifting the restrictions from the balance of the property.

The facts are undisputed. In 1954 the Shipmans platted the subdivision 'Beau Vue' and filed their plat. Thereafter the Zavislaks purchased lot one, block one, Beau Vue, and were the only buyers. At the time of the original subdivision, contiguous property was raw agricultural land and there was no water or sewer system provided. It was contemplated that each building site or lot would provide its own domestic water supply by use of a well and would have its own septic tank and leaching field, the lot areas provided being large enough for this purpose. The lots in the first subdivision of Beau Vue were three quarters of an acre, some as large as one acre.

Between 1954 and 1956 other developers platted contiguous unimproved farm land both to the east and to the west, and new subdivisions were created providing for smaller building sites and laying out a pattern of streets and avenues which did not coincide or conform to the Beau Vue plat. A water and sanitation district was created and water, sewage and natural gas lines became available to Beau Vue. In the two years following the original platting no other lots had been sold and the Shipmans sought and obtained consent from Jefferson County to vacate the Beau Vue plat and file a second plat with streets and avenues more nearly conforming to the adjacent subdivisions and with smaller lots approximately half an acre in size. The restrictive covenants in the new plat were nearly identical with those of Beau Vue except for the lot size and set-backs. In the Beau Vue plat the minimum set-back from any street was 40 feet and from adjoining property lines 30 feet, whereas in the new plat of Beau Vue Ranchettes a minimum set-back of 30 feet from...

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9 cases
  • Boston v. Buchanan
    • United States
    • Oklahoma Supreme Court
    • December 23, 2003
  • Banning Lewis Ranch Co. v. City of Colo. Springs (In re Banning Lewis Ranch Co.)
    • United States
    • U.S. Bankruptcy Court — District of Colorado
    • June 22, 2015
    ...longer serve the purpose for which they were imposed and are no longer beneficial to those claiming under them.” Zavislak v. Shipman, 147 Colo. 184,362 P.2d 1053, 1055 (1961). Here, the Plaintiffs assert that circumstances have changed substantially over the past 25 years, such that enforce......
  • West Alameda Heights Homeowners Ass'n v. Board of County Com'rs of Jefferson County
    • United States
    • Colorado Supreme Court
    • August 25, 1969
    ...the covenants are valid and enforceable. The pertinent rule of law applicable to this case is most recently set out in Zavislak v. Shipman, 147 Colo. 184, 362 P.2d 1053, wherein this court adopted the language of McArthur v. Hood Rubber Co., 221 Mass. 372, 109 N.E. 162, as "* * * When the p......
  • Curry v. Zag Built LLC
    • United States
    • Colorado Court of Appeals
    • May 3, 2018
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6 books & journal articles
  • Chapter 2 - § 2.10 • JUDICIAL CONSTRUCTION OF THE DECLARATION
    • United States
    • Colorado Bar Association Colorado Community Association Law: Condominiums; Cooperatives; and Homeowners Associations (CBA) Chapter 2 Creation of a Common Interest Community
    • Invalid date
    ...of doctrine requires that property owner reasonably relied on actions or representations of committee).[536] Zavislak v. Shipman, 362 P.2d 1053 (Colo. 1961) (power may be exercised when it is shown that covenants no longer serve purpose for which they were imposed and are no longer benefici......
  • Chapter 14 - § 14.4 • RESTRICTIVE COVENANTS
    • United States
    • Colorado Bar Association Colorado Real Property Law (CBA) Chapter 14 Covenants
    • Invalid date
    ...P.2d 1106 (Colo. App. 2000).[193] Schneider v. Drake, 44 P.3d 256 (Colo. App. 2001) (resubdivision of lots).[194] Zavislak v. Shipman, 362 P.2d 1053 (Colo. 1961) (change of circumstances). [195] W. Alameda Heights Homeowners Ass'n v. Bd. of County Comm'rs of County of Jefferson, 458 P.2d 25......
  • Rule 105 ACTIONS CONCERNING REAL ESTATE.
    • United States
    • Colorado Bar Association Colorado Rules of Civil and Appellate Procedure (CBA)
    • Invalid date
    ...no longer serve the purpose for which they were imposed and are no longer beneficial to those claiming under them. Zavislak v. Shipman, 147 Colo. 184, 362 P.2d 1053 (1961); Cole v. Colo. Springs Co., 152 Colo. 162, 381 P.2d 13 (1963). Documents that reasonably designate land burdened by eas......
  • Chapter 10 - § 10.3 • ARCHITECTURAL AND ENVIRONMENTAL STANDARDS
    • United States
    • Colorado Bar Association Colorado Community Association Law: Condominiums; Cooperatives; and Homeowners Associations (CBA) Chapter 10 Restrictions On Use, Appearance, and Alienation; Nuisances
    • Invalid date
    ...See § 10.15.3.[144] See § 10.15.4, infra.[145] C.R.S. § 38-33.3-106.5(1)(e).[146] See § 10.1.3.[147] Zavislak v. Shipman, 362 P.2d 1053 (Colo. 1961).[148] West Alamedo Heights Homeowners Ass'n v. Bd. of County Comm'rs, 458 P.2d 253, 256 (Colo. 1969) (courts look to whether original purpose ......
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