Ray v. Miller

O.W. RAY and Neil Ray v. James and Paula
MILLER and Scott E. Poynter

95-1051                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996


1.   Covenants -- restrictive covenants -- restrictions upon use of
     land not favored by courts -- parties confined to meaning of
     language employed. -- Courts do not favor restrictions upon
     the use of land, and if there is a restriction, it must be
     clearly apparent; where the language of the restrictive
     covenant is clear and unambiguous, the parties will be
     confined to the meaning of the language employed, and it is
     improper to inquire into the surrounding circumstances or the
     objects and purposes of the restriction for aid in its
     construction.

2.   Covenants -- restrictive covenants -- construction of. --
     Where there is uncertainty in the language by which a grantor
     in a deed attempts to restrict the use of realty, freedom from
     restraint will be decreed; if there is any doubt, the
     covenants are to be construed strictly against those seeking
     to enforce them and liberally in favor of freedom in use of
     the land.

3.   Covenants -- no written restriction preventing construction of
     mixed masonry-and-metal fireplaces. -- Where there was a
     requirement that "all chimneys and foundations below siding
     shall be constructed with brick or stone," but no reference
     was made to fireplaces in the bills of assurance included in
     the covenances to the residential lots purchased by appellees
     in appellants' subdivision, the supreme court held that the
     chancellor was correct in finding that there was no written
     restriction preventing the construction of fireplaces
     consisting of materials other than masonry inside the brick
     chimneys.

4.   Covenants -- restrictive covenants -- must be in writing --
     effect of general plan of development. -- Restrictive
     covenants must be in writing; it is proper to consider whether
     a general plan of development exists when determining whether
     a written covenant or restriction contained in the chain of
     title of the party seeking to avoid the restriction remains
     valid; no Arkansas case has been recorded in which a
     restriction was created as the result of a general development
     scheme.

5.   Covenants -- restrictive covenants -- chancellor did not err
     in dismissing appellants' claim based on general plan of
     development. -- The supreme court held that the chancellor did
     not err in dismissing appellants' claim that a general plan of
     development had established the asserted restriction on
     appellees' lots.


     Appeal from Lonoke Chancery Court; Charles A. Walls,
Chancellor; affirmed.
     Ogles Law Firm, P.A., by: John Ogles, for appellants.
     Robert E. Bamburg, for appellees James and Paula Miller.
     Poynter & Gearhart, P.A., by: Terry M. Poynter, for appellee
Scott E. Poynter.

     David Newbern, Justice.
3/4/96    *ADVREP2*   


                                   95-1051
O.W. RAY and NEIL RAY              Opinion Delivered:

          Appellants               Appeal from Lonoke Chancery
                                   Court (E-94-422)
     v.
                                   Honorable Charles A. Walls,
JAMES and PAULA MILLER,            Chancellor
and SCOTT E. POYNTER

          Appellees                Affirmed



                      Justice David Newbern


     This appeal is about whether land purchased by the appellees,
James and Paula Miller and Scott E. Poynter, from the appellants,
O.W. Ray and Neil Ray (the Rays), is burdened by a restriction
preventing installation of "zero clearance fireplaces" in homes
constructed by the Millers and Mr. Poynter.  The Chancellor
dismissed the Rays' claim after hearing their case in chief.  We
affirm the decision.
     The Rays developed a subdivision in phases.  The Millers and
Mr. Poynter purchased residential lots in phase II of the
development.  The convenances to them each included a bill of
assurance which stated "all chimneys and foundations below siding
shall be constructed with brick or stone."  It contained no
reference to fireplaces.
     The Millers and Mr. Poynter constructed homes with brick
chimneys but used other than masonry materials inside the chimneys. 
Such construction was apparently made possible by the use of a
metal insert fireplace box and a metal pipe or flue extended
through the chimney.  In his testimony Bill Ray referred to the
construction used as "zero clearance fireplace."  He said he had
informed the Millers and Mr. Poynter during construction of their
homes that fireplace construction had to be all-masonry.    Barry
Gable, a contractor, testified he understood the fireplaces in the
subdivison were to be all-masonry but he admitted his understanding
was based upon provisions in covenants contained in instruments
conveying lots in other phases of the subdivision.  Harry Polovina,
a resident of the subdivision, testified he understood the phase II
bill of assurance meant all-masonry fireplaces even though there
was no reference to fireplaces.  A Mr. Hipple gave similar
testimony.

                      1. Bill of assurance
     In responding to the motion to dismiss, the Chancellor
concluded there was nothing in the bill of assurance applicable to
the Millers' and Mr. Poynter's lots which mentioned fireplaces or
flues.  Nor was there evidence that the chimneys were constructed
of anything other than bricks and concrete blocks.
     Courts do not favor restrictions upon the use of land, and if
there is a restriction, it must be clearly apparent.  Harbour v.
Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). See also
Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445 (1970).  When the
language of the restrictive covenant is clear and unambiguous, the
parties will be confined to the meaning of the language employed,
and it is improper to inquire into the surrounding circumstances or
the objects and purposes of the restriction for aid in its
construction.  Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970).
     When there is uncertainty in the language by which a grantor
in a deed attempts to restrict the use of realty, freedom from
restraint will be decreed.  If there is any doubt, the covenants
are to be construed strictly against those seeking to enforce them
and liberally in favor of freedom in use of the land. 
Baldischwiler v. Atkins, 315 Ark. 32, 864 S.W.2d 853 (1993).
     The Chancellor was undoubtedly correct in holding there was no
written restriction preventing the construction in question.

                 2. General plan of development
     The Rays contended their evidence was sufficient to show a
general plan of development in the subdivision sufficient to bind
the Millers and Mr. Poynter and prohibit the use of the zero
clearance fireplaces.
     Again in response to the motion to dismiss, the Chancellor
found there was no substantial evidence of a general plan of
development affecting the subdivision.  Even if we could say there
was substantial evidence of a general plan of development
suggesting the homes built in the subdivision were not to have zero
clearance fireplaces, the result reached was correct.  
     In Knowles v. Anderson, 307 Ark. 393, 821 S.W.2d 466 (1991),
we pointed out that restrictive covenants must be in writing.  See
Ark. Code Ann.  18-12-103 (1987).  As to the effect of a general
plan, we said:

     As the Harbour [v. Northwest Land Co.,  284 Ark. 286, 681 S.W.2d 384 (1984)] opinion makes clear, it is proper to
     consider whether a general plan of development exists
     when determining whether a written covenant or
     restriction contained in the chain of title of the party
     seeking to avoid the restriction remains valid. We have
     no case in which a restriction has been created as the
     result of a general development scheme."

     The Chancellor did not err in dismissing the Rays' claim that
a general plan of development had established the asserted
restriction on the Millers' and Mr. Poynter's lots.
     Affirmed.

Dudley, J., not participating.