Zinda v. Krause
| Decision Date | 18 January 1995 |
| Docket Number | No. 94-1799,94-1799 |
| Citation | 191 Wis.2d 154,528 N.W.2d 55 |
| Parties | Janet ZINDA, Plaintiff-Respondent, v. Werner KRAUSE, Susan Krause, Peter N. Reddin, Catherine Reddin, David Paprocki, Patricia Paprocki, Gary Teuber, Gloria Teuber, Jeffrey Paprocki, Jean Paprocki, Arnold Paprocki, Helen Paprocki, James Paprocki and Rosemary Paprocki, Defendants-Appellants, John LaCart, Leann LaCart, Marshall Johnson and Victoria Johnson, Defendants. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-appellants, the cause was submitted on the briefs of Thomas L. Shriner, Jr. and Kevin P. Whaley, of Foley & Lardner of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Gregory A. Grobe and Donald L. Romundson of Liebmann, Conway, Olejniczak & Jerry, S.C. of Green Bay.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
Werner and Susan Krause, et al. (collectively the appellants), appeal a judgment interpreting a restrictive covenant to preclude them from making certain desired uses of the common area in the North Harbour at Wisconsin Bay Development located in Door County. The appellants contend the trial court erroneously determined that the restrictive covenant prohibited them from making certain uses of the common area because: (1) The covenant is so ambiguous as to be unenforceable; and (2) the language of the covenant does not expressly prohibit the uses they wish to make of the common area. Because the restrictive covenant is unambiguous and the trial court properly concluded that the uses the appellants sought to make of the common area violated the terms of the covenant, the judgment is affirmed.
North Harbour at Wisconsin Bay was developed by Peter and Katherine Reddin and consists of twelve lots. Lots five through nine are shorefront lots (the "shorefront lots") located immediately adjacent to Lake Michigan. The remaining seven lots, one through four and ten through twelve, are located south of the shorefront lots. Although these backlots, referred to as the "shore access lots," do not border Lake Michigan, a tract of land known as the common area provides the owners of these lots with access to the lake.
The common area, located between lots six and seven, borders Lake Michigan to the north. Peter Reddin created the common area prior to selling any of the North Harbour lots and each of the seven shore access lot owners owns an undivided one-seventh interest in the area. A path, which Reddin built to facilitate access to the lake, runs north and south along the entire length of the common area. The path is approximately nine feet wide and is covered with shredded bark. Reddin maintained the path by using a tractor to spread additional bark over the path each spring.
Prior to selling the lots, Reddin created and recorded a Declaration of Covenants, Restrictions and Easements. The declaration, which contains five articles and twenty-three sections, controls the use and ownership of the subdivision property. Among the provisions contained in the declaration is the following restrictive covenant:
Each owner of Tracts 1 through 4 and Tracts 10 through 12 shall have the non-exclusive right to the use and enjoyment of the common area. No owner shall do anything or permit anything to be done to the common area which would adversely affect the vegetation and natural beauty of the common area. Those owners having the ownership interest in and right to use the common area shall be responsible for keeping said area in a clean and orderly condition.
In January of 1993, Werner and Susan Krause, who own shore access lot 4 and shorefront lot 5, hired a contractor to initiate the construction of a pier in front of their shorefront lot. The Krauses authorized the contractor to use the common area to transport equipment and materials to the shorefront for the construction of the pier. To facilitate the transport of the equipment, the contractor removed seven trees from the common area, some of which were either dead or dying. Approximately two months after beginning construction on the pier, the Krauses advised the other North Harbour lot owners that they were using the common area in connection with the construction of their pier.
Upon receiving notice of the Krauses' use of the common area, Janet Zinda, owner of shorefront lot 7, filed a two-count complaint against the Krauses, the Reddins and the Three preliminary hearings were subsequently held to determine whether a temporary or permanent injunction should be issued enjoining the appellants' activities on the common area. At the conclusion of the second hearing, the court found that Zinda failed to prove that she would suffer irreparable harm in the absence of an injunction and denied her motion for temporary injunctive relief. Approximately one month later, the appellants filed a motion to dismiss the second count of the complaint pertaining to Zinda's allegation that the DNR failed to provide her adequate notice of the Krauses' permit application. The court granted the motion, and the case proceeded on the first count.
State of Wisconsin Department of Natural Resources. In the first count of her complaint, Zinda alleged that the Krauses' use of the common area violated the restrictive covenant and requested the court to issue an injunction enjoining the Krauses from continuing further construction on the pier. Additionally, Zinda requested the court to enjoin the Krauses and the Reddins from doing additional damage to the vegetation and natural beauty of the common area. The second count of the complaint alleged that the Krauses' building permit was defective because the DNR failed to provide Zinda with adequate notice of the Krauses' permit application in violation of § 30.02, STATS.
Zinda subsequently amended her complaint on two separate occasions, joining all of the North Harbour land owners as defendants. Additionally, Zinda filed a second motion for a temporary injunction. In her motion, Zinda alleged that the appellants were continuing to cut down trees on the common area in violation of the restrictive covenant. Further, Zinda alleged that the appellants intended to install a "dry fire hydrant" and picnic tables on the common area. Zinda claimed that these activities violated the restrictive covenant and, therefore, she requested the court to enjoin these activities as well. The court held a third preliminary hearing to consider the motion. At the conclusion of the hearing, the court granted Zinda's request to enjoin the installation of a dry fire hydrant. The court, however, did not make a ruling on Zinda's allegations concerning the unauthorized tree cutting or the installation of picnic tables. The case then proceeded to trial.
At the bench trial, Zinda argued that the restrictive covenant precluded the appellants from engaging in the following activities on the common area: (1) pruning or cutting trees and vegetation; (2) placing shredded bark on the common area path; (3) constructing a dry fire hydrant; (4) operating vehicles on the common area path; (5) installing or constructing a deck, platform or picnic tables; (6) placing a wooden sign at the entrance of the common area indicating that it is a private area; and (7) placing a fence at the entrance of the path to discourage trespassers. At the conclusion of the trial, the trial court found that the intent of the restrictive covenant was to preserve the common area in its natural state. The trial court then evaluated each activity Zinda sought to enjoin to determine whether the particular activity would jeopardize the natural state of the area. Based on this evaluation, the trial court concluded that all of the activities, except the fence and the sign, endangered the natural state of the common area and entered judgment enjoining the appellants from engaging in those activities.
The appellants do not dispute that Zinda has standing to enforce the terms of the restrictive covenant. However, the appellants argue that Wisconsin's public policy favors their free and unrestricted use of the common area. Crowley v. Knapp, 94 Wis.2d 421, 434, 288 N.W.2d 815, 822 (1980). The appellants note that "restrictions contained in deeds and in zoning ordinances must be strictly construed to favor unencumbered and free use of property." Id. Further, when the meaning of the language in a restrictive covenant is doubtful, "all doubt, under the general rule, should be resolved in favor of the free use thereof for all lawful purposes by the owner of the fee." Id. at 438 n. 3, 288 N.W.2d at 823 n. 3. Here, the appellants claim that the restrictive covenant giving rise to this case is ambiguous because the term "natural beauty" is susceptible to The interpretation of a restrictive covenant is a question of law that we review independently of the trial court. Bubolz v. Dane County, 159 Wis.2d 284, 291-92, 464 N.W.2d 67, 70 (Ct.App.1990). Whether the language of a restrictive covenant is ambiguous is also a question of law. See Lamb v. Manning, 145 Wis.2d 619, 627, 427 N.W.2d 437, 441 (Ct.App.1988). The language in a restrictive covenant is ambiguous if it is susceptible to more than one reasonable interpretation. See Borchardt v. Wilk, 156 Wis.2d 420, 427, 456 N.W.2d 653, 656 (Ct.App.1990). However, if the intent of a restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced. Voyager Village Property Owners Ass'n v. Johnson, 97 Wis.2d 747, 749, 295 N.W.2d 14, 15 (Ct.App.1980). By intent we do not mean the subjective intent of the drafter, but the scope and purpose of the covenant as manifest by the language used. See Hall v. Church of the Open Bible, 4 Wis.2d 246, 248, 89 N.W.2d 798, 799 (1958). Applying these principles of law to the case at bar, we conclude that the restrictive covenant is...
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