Bumgarner v. Pruitt

IRWIN, Justice. Plaintiffs in error, herein referred to as plaintiffs, commenced proceedings against defendant in error to enjoin and restrain him from constructing a barn on a certain lot in violation of the restrictive covenants contained in the dedication deed. A temporary restraining order was issued. On hearing, the trial court determined the issues in favor of defendant, dissolved the temporary restraining order, and rendered judgment for defendant. Plaintiffs appeal from the order overruling their motion for a new trial. FACTS The lot on which defendant started the construction of his barn is in a subdivision consisting of six lots located about two miles north of the City of Seminole, and was platted into a subdivision by the plaintiffs in 1960. Defendant, by mesne conveyances, acquired title from plaintiffs to Lots 2 and 3 of the subdivision, and title to the four remaining lots is still vested in plaintiffs. t Defendant built his home on Lot 2 and had begun the construction of the barn on Lot 3 when this proceeding was instituted. The lots contain about two acres each. Plaintiffs’ home joins the subdivision and the only structures located in the subdivision are defendant’s home and the barn he started to construct. At the time of the platting of the subdivision, plaintiffs prepared and caused to be placed of record the following “Protective Covenants” pertaining to the subdivision. Omitting the purpose clause, they are: 1.All lots within the subdivision shall be known and designated as residential building plots. No structure shall be erected, altered, placed or permitted to remain on any residential building plot other than one detached single family dwelling not to exceed two and one half stories in height and a private garage for not more than two automobiles and other out buildings incidental to residential use of the plot. 2. No business, trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood. 3. No trailer, basement, tent, shack, garage, barn or other outbuilding erected in the tract shall at any time be used as a residence temporarily or permanently, nor shall any structure of a temporary character be used as a residence. 4_ * * *. S. The keeping, boarding or breeding of dogs, cats or other pets on a commercial basis shall not be permitted within this subdivision. The other provisions of the protective covenants are not germane to this discussion, so need not be set out here. Defendant readily admitted that plaintiffs placed certain restrictions on the use of the platted lots and that he was in the process of building a barn on Lot 3 when this case was filed. CONCLUSIONS Plaintiffs argue that paragraph 2 of the restrictions definitely restrict the conducting of any business, trade or activity, and paragraph 5 restricts the keeping, boarding or breeding of pets on a commercial basis upon any lot. Although such restrictions do relate to such activities, the only activity or conduct that plaintiffs sought to enjoin or restrain was the building of the barn, nothing more and nothing less, and this is the only issue presented to and determined by [653] the trial court. This is brought clearly into focus in defendant’s brief wherein he states: “The real issue is simply, do the restrictive covenants prohibit defendant from building a barn on the property? This is the only issue raised. This is the only issue tried.” In Mattson v. Fezler, 202 Okl. 589, 216 P.2d 275, an action was brought to permanently enjoin the use of certain property for business purposes in violation of the plat restrictions. In affirming the judgment of the trial court granting the injunction, we held that restrictions on the use of real property must be strictly construed, and will not be extended on the one hand or limited on the other, but strictly enforced in a proper case. We further held: “The language ‘all buildings in said addition shall be for the residence purposes only’ contained in the plat restrictions covering an addition to a city, restricts the use of residences constructed in said addition solely to residential purposes where there is no provision in the restrictions modifying or qualifying such language.” In Christ’s Methodist Church v. Macklanburg, 198 Okl. 297, 177 P.2d 1008, we held: “Where, in pursuance of a plan, a section of an addition is designed to be purely residential in character and, in order to make it more attractive as such, the use of the lots therein is by the terms of the plat and dedication restricted to residential purposes, held, such restriction is not unreasonable in contemplation of law.” In Trotter v. Loum, Okl., 321 P.2d 651, we said the context and meaning of the restrictions as a whole should be considered in arriving at a proper construction of the same. Paragraph 1 of the restrictions designates all the lots as residential building plots and authorizes the construction of “a private garage for not more than two automobiles and other out buildings incidental to residential use of the plot.” Paragraph 3 does not restrict the erection or construction of a “garage, barn or other out building” but prohibits such buildings from being used as a temporary or permanent residence. As heretofore set forth, how the bam will be used or is being used is not an issue in these proceedings, as the only issue presented is whether the restrictive covenants prohibit the building of a barn on the premises. In determining this issue, the context and meaning of the restrictive covenants in the dedication deed should be considered as a whole and effect should be given to the intention of the dedication deed and considered in connection with the circumstances surrounding the dedication and the object sought to be accomplished. Since the restrictive covenants do not prohibit the erection of a barn, but in effect, recognize that a barn or other out buildings may or will be erected, we can only conclude that the dedication deed does not restrict the erection and construction of the barn in the instant proceeding. Judgment affirmed. DAVISON, WILLIAMS, BLACKBIRD and LAVENDER, JJ., concur. HALLEY, C. J., JACKSON, V. C. J., and BERRY and HODGES, JJ., dissent.