Walters v. Colford, 297 Neb. 302

Background

The Adamy subdivision was platted and dedicated in 1976 with recorded restrictive covenants applying to the 14 lots within that subdivision. The Adamy family retained adjacent acreage, including a 5-acre parcel later sold to the Colfords.
Plaintiffs (neighbors who own lots in the Adamy subdivision) sued the Colfords and Adamy alleging the Colfords’ large metal building violated the subdivision covenants and asserting claims for mandatory injunction, nuisance, and conspiracy (an invasion-of-privacy claim was later dismissed).
The Colfords purchased a 5-acre parcel from Adamy in 2013; at sale time that parcel was not subject to the Adamy subdivision covenants. Later, Adamy and the Colfords negotiated different, separate restrictions for that parcel.
Plaintiffs relied in part on sales brochures and advertising that showed the subdivision lots adjacent to Adamy’s other parcels and argued the Colford property was subject to the subdivision covenants under the doctrine of implied reciprocal negative servitudes.
The district court granted summary judgment to the Colfords and Adamy, holding the Adamy subdivision declaration/plat controls and the implied-servitude doctrine did not apply to property outside the recorded subdivision; the Supreme Court of Nebraska affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Colford parcel is subject to Adamy subdivision covenants by implication	Walters: the doctrine of implied reciprocal negative servitudes makes the Colford property subject to the subdivision restrictions based on a common grantor and marketing materials	Colford/Adamy: the Colford parcel was not part of the platted subdivision and Adamy did not intend those covenants to apply; the developer used a recorded plat/declaration so doctrine should not apply	The court held the doctrine does not apply; recorded plat/declaration limited the plan to the platted lots and buyers had constructive notice that the Colford parcel was outside the development
Whether advertising/brochures created a factual dispute about developer intent to include adjacent parcels	Walters: brochures and representations show a general plan and induced purchaser expectations	Colford/Adamy: brochures were not approved by Adamy and cannot overcome the recorded declaration and plat	The court held the recorded declaration/plat controls; any brochure-based implication did not create a material factual dispute sufficient to apply the doctrine
Whether implied servitudes can be used where developer records a declaration of restrictions covering the development	Walters: implied servitudes should protect purchasers’ expectations irrespective of form	Colford/Adamy: recording a declaration makes implied servitude unnecessary and inappropriate	The court held the doctrine is a gap-filler and does not apply where a developer records a declaration restricting the entire planned development
Whether nuisance and conspiracy claims premised on covenant violations survive if covenants do not apply	Walters: claims valid if covenants can be imposed by implication	Colford/Adamy: if covenants do not apply, related tort claims fail	The court held nuisance and conspiracy claims fail because covenants do not apply to the Colford property

Key Cases Cited

Pierce v. Landmark Mgmt. Group, Inc., 293 Neb. 890 (2016) (summary judgment standard and viewing evidence in light most favorable to nonmoving party)
Skyline Woods Homeowners Assn. v. Broekemeier, 276 Neb. 792 (2008) (doctrine of implied reciprocal negative servitudes; proof of common plan and notice)
Egan v. Catholic Bishop, 219 Neb. 365 (1985) (application of implied reciprocal servitudes where common grantor incorporated uniform restrictions)
Plumb v. Ruffin, 213 Neb. 335 (1983) (restrictive covenants enforceable among owners when created for mutual benefit)