Bumgarner & Bowman Builders, Inc. v. Hollar

MORRIS, J. The record and brief contained no assignments of error as required by Rules 19(c) and 28, Rules of Practice in the Court of Appeals of North Carolina. This failure to comply with the rules would in this case ordinarily present for review only errors appearing on the face of the record proper. Trust Co. v. Henry, 267 N.C. 263, 148 S.E. 2d 7 (1966). We have, nevertheless, considered the exceptions listed in the record. The primary question presented by plaintiff’s exceptions is whether the shed being constructed violates the restrictions contained in the deed, specifically paragraphs 2, 4 and 5 quoted above. It is plaintiff’s position that the shed is a structure and' that the construction thereof is a violation of the last sentence of paragraph [17] 2 of the restrictions. Defendant''concedes that the shed is a structure. However, it is defendants’ positrón that the construction of the shed is not in violation of the restrictions, because paragraph 2, when considered in relation to paragraph 5, is ambiguous and susceptible to various interpretations. Decision must depend on the 'construction of paragraphs 2 and 5 in the restrictions. “Restrictive covenants are not favored and are to be strictly construed against limitation on use. In the absence of clear and unequivocal expressions, restrictive covenants are not to be expanded and all doubts are to be resolved in favor of the free use of the property.” Hullett v. Grayson, 265 N.C. 453, 144 S.E. 2d 206 (1965). “In construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and that their intention must be gathered from study and consideration of all the covenants contained in the instrument or instruments creating the restrictions.” Long v. Branham, 271 N.C. 264, 156 S.E. 2d 235 (1967). Using these guidelines, we reach the conclusion that the construction of the shed by the defendants is’ not a violation of the restrictions contained in the deed. Paragraph 2, standing alone., is not ambiguous and would serve to prohibit any structure on the lot except one detached single family dwelling. However, when- paragraph 2 is read in conjunction with paragraph 5, the real meaning of the restrictions and intent of the parties become doubtful. Paragraph 5 could reasonably be construed to mean that the enumerated structures or other outbuildings could be erected on the lot so long as they were not used as a temporary or permanent residence. Indeed, the use of the word “outbuilding” in paragraph 5, when taken without consideration of the provisions of paragraph 2, implies that other structures separated from the dwelling may be erected on the lot so long as they are not used as a residence. An outbuilding is defined in Black’s Law Dictionary, 4th Ed., as “[Something used in connection with a main building. (Citation omitted). A small building appurtenant to a main building, and generally separated from it; an outhouse. (Citation omitted).” It is defined in Webster’s Third New International Dictionary (1968) as “a building separate from but accessory to a main house.” Additionally, paragraph 5 does not provide that none of the structures enumerated shall- be erected but, when considered alone, is susceptible of the interpretation that if any or all of them should be erected on a lot, none could be used as a residence. Concededly, paragraph 5 .is also susceptible of interpretation as defining, by enumeration, those structures which cannot be used [18] as a “detached single family dwelling”. In view of the apparent ambiguity of the restrictions when considered together, we are compelled to resolve these doubts in favor of the defendants. Long v. Branham, supra; Hullett v. Grayson, supra. Plaintiff excepted to the court’s assessment of costs against plaintiff. This action is equitable in nature, and the taxing of costs is within the discretion of the court and the court’s action is not reviewable. G.S. 6-20; Hoskins v. Hoskins, 259 N.C. 704, 131 S.E. 2d 326 (1963). Affirmed. Mallaed, C.J., and HedeicK, J., concur.