Gardner v. Jefferys

Gardner v. Jefferys (2004-022); 178 Vt. 594; 878 A.2d 259

2005 VT 56

[Filed 04-May-2005]

                                 ENTRY ORDER

                                 2005 VT 56

                      SUPREME COURT DOCKET NO. 2004-022

                             FEBRUARY TERM, 2005

  Sheldon Gardner	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Washington Superior Court
                                       }	
  William Jefferys III, Susan          }
  Jefferys, George Soules and          }
  Janice Soules	                       }	DOCKET NO. 569-9-00 Wncv

                                                Trial Judge: Mary Miles Teachout

             In the above-entitled cause, the Clerk will enter:


       ¶  1.  Plaintiff Sheldon Gardner appeals the superior court's
  determination that a restrictive covenant in his deed runs with the land to
  the benefit of adjacent landowners, defendants George and Janice Soules and
  defendants William and Susan Jefferys.  We affirm.

       ¶  2.  In 1957, William Jefferys Jr. and his wife Ena, the parents
  of defendant William Jefferys III, purchased approximately two hundred
  acres of farm land in Fayston, Vermont known as the Strong Farm.  Beginning
  in 1966, the elderly Jefferys began selling off parcels of the farm.  In
  1969, plaintiffs Sheldon and Carin Gardner purchased, by warranty deed, a
  ten-acre parcel of undeveloped land from the Jefferys.  The deed contains a
  restrictive covenant providing that a specified

    part of the premises . . . shall forever be and remain open and
    free of all buildings and structures, except the right to
    construct on said open land a private swimming pool, and/or tennis
    court, and, the usual fences and structures appurtenant thereto
    and such other buildings and structures as meet the approval, in
    writing of the Grantors herein, their heirs and assigns.

       ¶  3.  The provision further states that rights secured therein are
  "to be enjoyed by the Grantors, their heirs and assigns."  In 1975, the
  Jefferys conveyed a five-acre parcel of land to Karin Souminen, who, in
  turn, sold the parcel to George and Janice Soules in 1987.  The Soules
  moved to Vermont and began to reside on the property in 1990, after they
  constructed a house there.  Their property is located above the Gardners'
  land.  In 1979, the elderly Jefferys conveyed the remainder of their
  Fayston property to their son, William Jefferys III, and his wife, Susan.
   
       ¶  4.  In the late summer and early fall of 1999, the Gardners wrote
  to William and Susan Jefferys twice requesting approval to build a
  two-story structure within the area restricted by the above-quoted
  covenant.  The Jefferys gave the Soules a copy of the request.  In June
  2000, one month after the Gardners obtained a permit to build a
  fifteen-foot accessory structure in the restricted area, the Soules wrote
  the Gardners a letter advising that they were interested parties to the
  restrictive covenant.  In September 2000, after receiving a letter from the
  town zoning administrator informing them that the posts and net placed on
  their open field were more similar to a temporary badminton or volleyball
  net than a permanent tennis court requiring a permit, the Gardners filed a
  declaratory judgment action seeking a determination of the effect of the
  restrictive covenant in their deed.  The Soules responded by filing a
  counterclaim.

       ¶  5.  In May 2001, the Gardners began constructing a shed in the
  restricted area.  Shortly thereafter, the superior court granted the
  Soules' request for a preliminary injunction halting the construction.  In
  the fall of 2001, the Gardners began planting white pines in the restricted
  area directly in the Soules' view.  The Soules sought to enjoin the
  Gardners from planting the trees, but, following a hearing, the superior
  court denied the request for a preliminary injunction.  In July 2003,
  following four days of a hearing on the merits of the declaratory judgment
  action, the superior court ruled that the benefit of the restrictive
  covenant ran with the land and was enforceable by both the Soules and the
  Jefferys, and that the Gardners had violated the covenant by commencing
  construction of the proposed shed and by planting trees in the restricted
  area.  Accordingly, the court enjoined the continued existence of the shed
  and the trees.  Further, the court prohibited the Gardners from allowing
  plants or crops in the restricted area to exceed six feet in height.  On
  appeal, plaintiff Sheldon Gardner argues that the superior court erred (1)
  by concluding that the restrictive covenant runs with the land to the
  benefit of the Soules and the Jefferys; (2) by requiring him to ensure that
  vegetation in the restricted area does not exceed six feet in height; and
  (3) by determining that the restrictive covenant prohibits him from
  constructing the proposed shed and planting the trees.
        
       ¶  6.  Plaintiff first contends that the restrictive covenant does
  not run with the land to the benefit of defendants because the parties
  intended the covenant to bind only the grantors, their heirs and assigns,
  and neither the Soules nor the Jefferys are heirs or assigns of the
  grantors.  We do not find this argument persuasive.  Four requirements must
  be met for a restrictive covenant to "run with the land" so that successor
  property owners may enforce its burdens and benefits: (1) the covenant must
  be in writing; (2) the parties to the covenant must have intended that the
  covenant run with the land; (3) the covenant must "touch and concern" the
  land; and (4) privity of estate must exist between the parties.  Rogers v.
  Watson, 156 Vt. 483, 487, 594 A.2d 409, 411 (1991).  Plaintiff argues only
  that the second requirement is not met in this case.  Intent that a
  restrictive covenant is to run with the land may be either express or
  implied, and may be shown by extraneous circumstances.  Id. at 488, 594 A.2d  at 412; see Welch v. Barrows, 125 Vt. 500, 504, 218 A.2d 698, 702
  (1966) ("The intention of the parties, not the language used, is the
  dominating factor, and the circumstances existing at the time of the
  execution of the deed, the situation of the parties and the subject matter
  are to be considered.").  In some instances, a covenant is "so intimately
  connected with the land as to require the conclusion that the necessary
  intention for the running of the benefit is present absent language clearly
  negating that intent."  Albright v. Fish, 136 Vt. 387, 393, 394 A.2d 1117,
  1120 (1978).  For example, we have held that a covenant prohibiting placing
  a particular type of structure on a property is such a restriction.  See
  Rogers, 156 Vt. at 488, 594 A.2d  at 412.  Indeed, unless the terms of a
  restrictive covenant provide otherwise, when a property benefitted by a
  restrictive covenant is divided into separately owned parcels, "[e]ach
  separately owned parcel is entitled to enforce [the] . . . covenant
  benefitting the property."  Restatement (Third) of the Law of Property §
  5.7(2) (2000).

       ¶  7.  Here, plaintiff argues that the restrictive covenant in his
  deed does not run with the land because it expressly benefits only the
  grantors and their heirs and assigns, thereby implying an intent not to
  allow the covenant to be enforced by successors to the land who are not
  heirs or assigns.  Plaintiff further states that neither the Soules' deed
  nor the Jefferys' deed includes an assignment from the elderly Jefferys,
  and that the Jefferys are not heirs because Ena Jefferys is still alive,
  and they did not obtain the land through inheritance.  According to
  plaintiff, they would never have purchased the property with the
  restrictive covenant if they thought that an indefinite number of
  successors could dictate how they used their property.  We conclude that
  the record in this case overwhelmingly demonstrates that the parties
  intended the restrictive covenant to run with the land.  The testimony of
  several witnesses, including Ena Jefferys, unequivocally demonstrated that
  the covenant was intended to keep the restricted area, which had always
  been an open meadow, "forever" open and free of any obstructions that would
  diminish the view from the grantors' remaining lands located above the
  meadow.  Moreover, the record, including evidence of negotiations
  surrounding the covenant and of the Gardners' subsequent conduct,
  demonstrates that the Gardners were aware of this intent.

       ¶  8.  Notwithstanding plaintiff's argument to the contrary, use of
  the term "assigns" rather than "successors" does not suggest that the
  parties intended to preclude subsequent owners of the dominant estate from
  enforcing the covenant.  To the contrary, "[i]t is well settled that where
  a restrictive covenant contains words of succession, i.e., 'heirs and
  assigns,' a presumption is created that the parties intended the
  restrictive covenant to run with the land."  Weeks v. Kramer, 696 A.2d 361,
  363 (Conn. App. Ct. 1997).  The word "assignee" is generally defined as
  "[o]ne to whom property rights or powers is transferred by another." 
  Black's Law Dictionary 114 (7th ed. 1999).  As Black's Dictionary states:

    Use of the term is so widespread that it is difficult to ascribe
    positive meaning to it with any specificity.  Courts recognize the
    protean nature of the term and are therefore often forced to look
    to the intent of the assignor or assignee in making the
    assignment-rather than to the formality of the use of the term
    assignee-in defining rights and responsibilities.

  Id.  As noted, the record demonstrates that the parties intended the
  covenant to run with the land.  Moreover, the fact that the grantors added
  the word "successors" to the term "heirs and assigns" in later covenants
  does not demonstrate that they intended the word "assigns" to have a more
  restrictive meaning in the instant covenant.  The covenants were written
  years apart and appear to have several boilerplate terms to express the
  grantors' intent that the covenants run with the land. 
          
       ¶  9.  Next, plaintiff argues that the superior court erred by
  construing the restrictive covenant to prohibit him from planting trees in
  the restricted area, and that, by doing so, the court imposed a burden on
  his property greater than that imposed by the restrictive covenant.  We
  disagree.  Generally, in construing a deed, the trial court must " 'give
  effect to the intention of the parties if it can be gathered from the
  language used when interpreted in connection with, and in reference to, the
  subject matter and purpose sought to be accomplished at the time the
  instrument was executed.' "  Creed v. Clogston, 2004 VT 34, ¶ 17, 176 Vt.
  436, 852 A.2d 577 (quoting McDonough v. W.W. Snow Constr. Co., 131 Vt. 436,
  441, 306 A.2d 119, 122 (1973)); see Welch, 125 Vt. at 504, 218 A.2d  at 702
  (intention of the parties is dominating factor).  Although the trial court
  may employ various rules of construction in interpreting a covenant,
  including the general rule that restrictive covenants should not be
  extended by implication, such rules are merely subordinate aids to the
  court's ultimate goal of determining the parties' intent.  Creed, 2004 VT
  34, ¶ 17; see County of Addison v. Blackmer, 101 Vt. 384, 389, 143 A. 700, 701 (1928) (although restrictive covenants are ordinarily construed
  strictly, "the intention of the parties is the thing to be determined, and
  all rules of construction are subordinate aids to its discovery"); cf.
  Lakes at Mercer Island Homeowners Ass'n v. Witrak, 810 P.2d 27, 28 (Wash.
  Ct. App. 1991) (while restrictive covenants were once disfavored, "modern
  courts have recognized the necessity of enforcing such restrictions to
  protect the public and private property owners" from urbanization
  pressures; primary objective in interpreting restrictive covenant is to
  determine intent of parties).

       ¶  10.  If the language of a restrictive covenant is clear and
  unambiguous, the covenant is given effect according to its terms.  Creed,
  2004 VT 34, ¶ 13.  Normally, the trial court determines, as a question of
  law, whether a covenant is ambiguous, and in doing so, may consider the
  circumstances surrounding the making of the covenant.  Id.  An ambiguity
  exists when the language of the document supports a different
  interpretation from that which appears when the language is considered in
  light of the surrounding circumstances, and both interpretations are
  reasonable.  Id.  If a covenant is determined to be ambiguous, the question
  of the parties' intent is one of fact to be determined based on all of the
  evidence.  Id. ¶ 18.  We review the trial court's findings of fact under
  a clearly erroneous standard, and thus we will uphold those findings unless
  there is no reasonable or credible evidence to support them, taking the
  evidence in a light most favorable to the prevailing party and excluding
  the effect of modifying evidence.  Id.
       
       ¶  11.    In this case, the covenant requires that the restricted
  area "shall be forever open and free of all buildings and structures,"
  apart from the right to construct "on said open land" the usual structures
  appurtenant to a swimming pool or tennis court.  The trial court made no
  explicit finding on whether the covenant is ambiguous, but rather
  determined that it was intended to maintain unobstructed views from the
  north to the south.  We conclude that both the language of the covenant and
  evidence of the circumstances surrounding the making of the covenant
  support the court's determination.  Notwithstanding plaintiff's arguments
  to the contrary, the word "open" is nonsensical as an adjective modifying
  the phrase "of all buildings and structures."  Rather, the latter phrase is
  connected only to the word "free," while the word "open" stands apart and
  refers to the land that had historically been maintained as an open field. 
  This interpretation is reinforced by the use of the term "open land" later
  in the same sentence.
   
       ¶  12.  The question, then, is what the parties meant by "open."  The
  record demonstrates that most of the restricted area had been mowed or
  hayed for several decades or more when the restrictive covenant was signed. 
  Ena Jefferys, one of the original grantors, testified that she always
  assumed that the phrase "open and free of all buildings and structures"
  meant that nothing would interfere with the view, which was "everything up
  there" and the reason why people bought property there.  Indeed, plaintiff
  himself acknowledged that he bought his property, at least in part, for the
  view, and that the word "open" in the covenant did not necessarily refer to
  buildings and structures.  In short, there was overwhelming evidence that
  the intent underlying the restrictive covenant at issue here was to
  maintain the restricted area as an open meadow, thereby allowing
  unobstructed views to the south for the benefit of adjoining neighbors. 
  Therefore, the superior court did not increase the burden imposed under the
  covenant by requiring the Gardners to ensure that vegetation in the
  restricted area remained below six feet in height.

       ¶  13.  Moreover, even if we were to construe the critical phrase of
  the restrictive covenant as meaning only that the restricted area was to be
  kept free of buildings and structures except those expressly allowed, we
  would still uphold the trial court's order prohibiting the Gardners from
  planting trees within the area.  Other courts have interpreted the word
  "structure" or "fence" to include a row trees when such an interpretation
  furthered the purpose and intent of the covenant or statutory provision. 
  In Witrak, for example, the restrictive covenant foreclosed the erection of
  a fence over six feet in height.  After considering that the purpose of the
  covenant was to preserve an open appearance in the community, the court
  concluded that even the literal meaning of the word "fences" did not
  exclude a row of trees that acted as a barrier.  Witrak, 810 P.2d  at 29-30. 
  In another case involving a spite fence statute that prohibited any
  maliciously erected "structure" that was in the nature of a fence, the
  court held that "a row of trees, arranged in a line by a person who planted
  them, could easily constitute a 'structure.' "  Wilson v. Handley, 119 Cal. Rptr. 2d 263, 267 (Cal. Ct. App. 2002); see Dowdell v. Bloomquist, 847 A.2d 827, 830 (R.I. 2004) (accord).  Here, the evidence at trial demonstrated
  that the row of trees plaintiff planted acted as a structure obstructing
  the view to the south, in violation of the restrictive covenant. 
        
       ¶  14.  We also reject plaintiff's argument that the superior court's
  earlier ruling refusing to temporarily enjoin the Gardners from planting
  trees is the "law of the case" with respect to whether the restrictive
  covenant prohibited them from planting trees in the restricted area.  The
  law of the case doctrine " 'posits that when a court decides upon a rule of
  law, that decision should continue to govern the same issues in subsequent
  stages in the same case.' " Morrisseau v. Fayette, 164 Vt. 358, 364, 670 A.2d 820, 824 (1995) (quoting Christianson v. Colt Indus. Operating Corp.,
  486 U.S. 800, 816 (1988)).  The doctrine is only a rule of practice,
  however, which the court may disregard under the proper circumstances. 
  Thus, a court ruling on an issue of law in the course of denying a motion
  for summary judgment retains the power to reopen what had previously been
  decided.  Morrisseau, 164 Vt. at 364, 670 A.2d  at 864.  Here, the superior
  court denied the Soules' request for a temporary injunction in an interim
  order.  The court did not consolidate the hearing on the Soules' request
  with a trial on the merits of the case.  See V.R.C.P. 65(b)(2) (court may
  order trial on merits of action to be advanced and consolidated with
  hearing on application for preliminary injunction).  Indeed, the merits
  hearing did not take place until nearly two years later.  Further, the
  court limited the scope of the hearing on the application for a temporary
  injunction, stating that it was not interested in conducting a trial within
  a trial.  Under these circumstances, the superior court's construction of
  the restrictive covenant in denying a temporary injunction was not "the law
  of the case," and, in any event, the court was not precluded from later
  rendering a different decision based on a fully developed evidentiary
  record.  See Converse v. Town of Charleston, 158 Vt. 166, 169, 605 A.2d 535, 537 (1992) (even if pretrial judge had decided issue on its merits,
  trial judge retained power to reopen what had been decided).

       ¶  15.  Finally, plaintiff argues that the superior court erred by
  prohibiting them from constructing the shed and ordering them to remove the
  already installed footings for the shed.  According to plaintiff, the
  proposed shed is consistent with a structure used to service a residential
  swimming pool and tennis court, and nothing in the deed prohibits the
  Gardners from maintaining the construction remnants on their property even
  if the shed cannot be built.  We find no error.  The restrictive covenant
  allows only "usual" structures "appurtenant" to a pool or tennis court. 
  The evidence demonstrated that the Gardners had not built, or even planned,
  a swimming pool or tennis court, and that the shed would be out of
  proportion for use in conjunction with a pool or tennis court.   Therefore,
  the court did not err by enjoining construction of the shed.  Moreover, the
  footings are within the restricted area, which the covenant requires to be
  kept "open and free of all buildings and structures," except for those
  designated therein.  The footings did not fit within the covenant's
  exception and therefore must be removed.

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice
     
                                       _______________________________________
                                       Brian L. Burgess, Administrative Judge,
                                       Specially Assigned

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned

                                       _______________________________________
                                       Ernest W. Gibson III, Associate 
                                       Justice (Ret.), Specially Assigned