*1 supervisors repair out of meeting statutory Ordering their duties. statute, compliance, removal with signs, repairs
minimum maintenance expected
make the road usable under condi- tions, scope all were within the of mandamus. requiring
But the road to be raised and
crowned, dug, along or moved with ditches mandating repairs in line with the coun-
ty highway superintendent’s opinion, went
beyond legal scope of mandamus relief
and hence constituted an abuse discretion. part Affirmed in reversed
part. MILLER, C.J., SABERS, GILBERTSON, JJ.,
AMUNDSON and
concur.
Laurie Jean as Admin
istrator of the Estate of John C. Hark sen, Harksen, Deceased, J.C. Plain a/k/a
tiff, PESKA, Appellant,
Gene Defendant and Johnson, Johnson,
Warren Carter Janet Johnson, Johnson,
Steven M. Dave R. Warder,
Robert A. Jo Anna C. Warder, Trustee, Robert A. and Robert Warder, individually,
A. Defendants Appellees, Howe, Kelts,
Everett P. Susan M. T. Ash Ashworth,
worth and E. Ruth Martens Lamont, Gordon O. Gavin and Donna J.
Gavin, Scott L. McCaskell and Sharia R.
McCaskell, Goudy, Betty Peska, Judith
Defendants.
No. 20092.
Supreme Court South Dakota.
Argued Jan. 1998.
Decided 1998.
Rehearing Aug. Denied
Gregory A. Eiesland and Michael C. Loos Eiesland, Barker, Rapid Quinn, Day & of appellant. City, for defendant and Johnson, Johnson of Heide- Steven M. Falls, Marlow, & priem, Miner Sioux appellees defendants and Johnsons. Warder, Office, A. Law Robert Warder City, appellees Hill for defendants and Ward- ers.
MILLER, Chief Justice. purchased a tract of
[¶ 1.] Gene land Black Hills of and in the Dakota built South neighboring property a “cabin”1 thereon. A owner, Harksen, brought suit John later enforce restrictive covenants that limited the buildings number of that could be built on trial, the land. a bifurcated determined the restrictive covenants ambiguous, mandatory that a injunction for the removal of the cabin should appeals. part issue. Peska We affirm part. and reverse and remand
FACTS 30, 1969, April Farrar On John C. [¶2.] Ray purchased Aldrich 210 acres of J. land in the Black Hills. Title scenic names, but it taken their was understood ownership the land would be that actual partnership informal known as held Each member of The The Creek Club.2 Slate one lot for Club was to receive Slate Creek participation. their 13, 1973, Farrar and On November filed a Declaration of Protective and Aldrich Pennington in the Restrictive Covenants The County Register of Office. Dec- Deeds’ para- prefatory consisted of two laration ownership and intent graphs of recitals owners,3 by sev- purpose of the followed nuisances, later, purposes only, noted cabin is a summer mer home 1. As will be $100,000. approximately impairment at valued the attractiveness of residence property, tone of the to maintain the desired of The Club were: 2. The members Slate Creek thereby community, to each site secure Aldrich, Gunderson, Farrar, Robert W. Michael enjoyment of his the full benefit and sum- owner DeMersseman, They, A. Warder. B. Robert home, greater restriction mer no partners Rapid City, law South all were also undisturbed of his site than neces- free and use Dakota. advantages other sary site to insure same [.] owners intent and of the covenants 3. The stated property for sum- "to insure the use of the specific covenants. enteen Three these dence thereon. He received a letter on 8.1993, applicable controversy, covenants are to this A. Robert member provide: Club, the Slate Creek who acting was also as attorney Harksen’s at that time. The letter Restrictive covenants herein contained specifically advised Peska that “if there is period fifty shall continue in for a force *3 any attempt (50) or construct build on this years from the date hereof and are property in violation of the covenants on this applicable any deed recorded after the property, Mr. ... Harksen enforce date of these covenants. where residences in excess of one are tract after than (11) grantee. grantee after the date of these covenants any parcel (2) No more residences [******] There shall conveyed specified date of these covenants to a property conveyed be no grantee the deed to the first subdivision of and recorded be built on except to a per- any residence. Peska received a permit on August construction thereafter. relief.” Peska and the realtor who sold including, ances from Buckwheat after [¶ 8.] receiving Peska was but not limited to property all legal did not contact an 19, 1993, letter, served with the summons that he could build a but did seek assur- equitable and commenced county injuctative attorney means [sic] complaint in this September action on mitted the deed. Despite lawsuit, pending Peska 22.1993. 22, 1974, January 4.] On Harksen [¶ and his home, continued construction on the summer Cynthia4 purchased wife ten acres of the finally finishing three months later mid- 210-acre tract from Farrar and Aldrich. December of 1993. He valued the cabin at Cynthia quitclaimed later her interest $130,000.6 Harksen. A pur- [¶ 5.] short time after Harksen The trial pro- court bifurcated the tract, chased his ten-acre Farrar and Aldrich ceedings, having first a trial as to whether warranty executed and delivered a deed for a violated, the restrictive covenants were fol- twenty-seven and one-half acre site Aid- lowed a second trial ap- to ascertain the rich and his wife Lucille. previ- Aldrichs had propriate remedy. The trial court held the ously site, erected a residence on their unambiguous covenants were and that provision deed to them did not contain a applied November, deed issued after allowing for an additional 1973, residence. when the covenants went into effect. It thus determined that the “deed to the first Aldrichs sold their land to grantee” was the one from Aldrich and Far- Peggy Buckwheat. The deed to her stated: rar to Aldrich and his wife. The court then (1) “Not more than one additional residence prohibited held covenant number 11 fur- shall be constructed premises ther subdivision Aldrichs’ and cove- fifty above-described for a term years nant 2 prohibited number building any more after the date hereof.” Buckwheat sold residences on the land. under the twenty acres of the tract Goudy to Judith ruling, court’s Peska’s seven and one-half May of remaining seven and acre tract and his cabin on that tract were in one-half acres to Betty Gene and Peska in violation of the covenants. August, 1992.5 purchased Peska had property separate After hearing on the with the intention of building remedies, a summer resi- issue of the trial court issued passed away $130,000 prior 4. Harksen Cyn- 6.Actually, to trial and placed value Peska thia, estate, as cabin, executor or $100,000 administrator of his about was attributable to the plaintiff. was substituted as For ease of refer- itself, structure and the remainder was attribut- ence, plaintiff we will continue to refer to the remedy able to the hearing, land. At the later appellee appeal in this as Harksen. n Peskaalso testified that the cabin cost him about $75,000 to build. title, Betty quitclaimed Peska right, all of her and interest in this land to Peska in 1995. merely ambiguous parties because two do not injunction requiring the removal mandatory proper agree as to its construction. Duche appeals, raises Peska’s cabin. (S.D. Miller, neaux following issues: 1992). Rule, Plain if a Meaning Under the court erred in deter- 1. Whether the trial “appears plain unambiguous term to be covenants were mining the restrictive face, meaning on its its must be determined unambiguous. from the four corners the instrument with court erred in issu- 2. Whetlier extrinsic na out resort evidence of injunction ordering ing mandatory Acres, Spring ture.” Brook N.W.2d at physically remove his cabin. (citation n. 2 quotations and internal omitted). OP REVIEW STANDARD *4 in question this is whether [¶ 16.] The case appeal a as we we read covenant On phrase meaning grantee” the “first can is, contract, any pre that without would a looking be determined from at the whole sumption that trial court correct. the document itself. offers several possi- Ass’n, Inc. Spring Brook Acres Users Water interpretations of who the grantee” ble “first (S.D.1993) 778, George, 780 v. 505 N.W.2d First, argues he first could be. that the Wilburn, 304, v. (citing Baker grantee Aldrich and Farrar as could be (S.D.1990)). a contract is am 306 Whether Next, partnership. the he first took title for (citations Id. question is a of law. biguous that, apply to all claims since the covenants omitted). Questions are de of law reviewed acres, grantee any 210 the first could be ¶75, 7, Roth, v. 565 Roth 1997 SD novo. person to tract of who was the first receive a 782, 784. N.W.2d argues land' from Aldrich and Farrar. Peska issue, our As to review 12.] the second [¶ person’s all that deed would then control “(1) injunction granting court’s is: a trial Next, maintains the first others. he that by the any of the facts found trial court Were person the to grantee have been first could (2)[i]f not, taking the erroneous? and, like- after the covenants were filed take true, abuse facts as did the court its discre wise, deed control all person’s this would Mary injunction?” in the granting tion that, claims Finally, others. since house, Hamilton, v. N.W.2d 474 Inc. 473 partners, refer to the first covenants do not (S.D.1991). grantee “non-partner” mean the first could a
receive deed.
DECISION
suggested
Peska has
several
[¶ 17.] While
examples
“first
that
possible
grantees,”
in
the trial court erred
13.] Whether
[¶
ambi-
fact
is not sufficient
create an
alone
determining the restrictive covenants
Ducheneaux,
A
guity.
[¶ that, argument because interpretation a application leave Peska’s rules the cove- partnership not mentioned in of two or genuine uncertainty as to which nants, apply until after covenants do meanings Spring Brook more is correct.” Acres, non-partner executed A a deed to a has been at 780. contract is not N.W.2d provision holders, Aldrich fails. He states that no and Farrar. Since first
also prev partners from “specify” Dakota law mts the South deed did not of resi- number excluding themselves from the covenants. could tract of dences that be built on the true, partners but the did not This already no more could be built than very themselves. The fact that the exclude Thus, existed. Peska’s built in cabin was partners are not mentioned violation of covenants. This is meant indicates the covenants were reading give fair to the covenants and partners, apply too. will not We read protects also the intent behind instrument, especially exceptions into the those covenants. we affirm the language when the is clear on its face.7 court on this issue. Finally, Peska maintains [¶ purpose of real restrictive covenants is the 2. Whether the trial erred in court and, protection property since values there issuing mandatory injunction order- testimony that his cabin increased ing physically Peska to his remove land, it in a reading value of the should result cabin.8 of the covenants favorable to him. See Pie argues 22.] Peska the trial (S.D. Case, chowski issuing mandatory erred re 1977). Our decision in Piechowski was cen quiring physically his cabin remove subdivision, very tered around a residential *5 that, any argues from the land. He if reme setting different than what we have here. dy necessary, it money damages is should be primary ais rule of that “[I]t construction injunction. and not an parties, particularly the intention of real the grantor, the sought that of should and be generally provides SDCL 21-8-14 possible.” out whenever carried Northwest permanent injunction may granted: that a be Chicago Ry. ern Pub. Serv. Co. v. & N.W. (1) pecuniary compensation Where would Co., 480, 484, S.D. 87 160 relief; adequate not afford (1973) (citation omitted). Here, the Declara (2) it extremely Where would be difficult tion of Protective and Restrictive Covenants to the compensation ascertain amount of specifically purpose states that the intent and relief; adequate which would afford of the owners was to use of the insure the (3) necessary the Where restraint is to
property for only, summer home use and prevent multiplicity judicial a proceed- of basically preserve to the attractiveness and ings; or community. reading tone of the Our of the complements this intent. (4) obligation Where the from a arises “ trust. ‘A [¶ 20.] contract be consid should parts a ered as whole and all of its and There are four basic factors to
provisions will be to the examined determine guide in exercising our courts con discretion Piechowski, meaning any part.”’ of 255 cerning injunctive relief: McKeown, at 74 (quoting N.W.2d Eberle v. (1) party enjoined the Did to be cause the (1968)). 345, 349, 393 S.D. damage? reviewing whole, In the covenants as a the (2) irreparable Would harm result without interpretation phrase fair of the “first because of lack of ade- grantee” holding applies mandates a that complete quate remedy at law? to all issued deeds after the covenants were (3) property, party enjoined acting executed. As to Peska’s “first Is the to be grantees” were Aldrich his wife who bad faith or is its injury-causing behavior property original received from the title an “innocent mistake”? earlier, testimony
7. Peska also relies on
some of the
8. As stated
our standard of review for
partners
to
as to their
to
this issue is
ascertain whether
facts
intentions not
be bound.
by
trial
found
and,
court were
erroneous
We
not and
need
cannot
this outside
consider
not, whether the trial
its
if
court abused
testimony,
ambiguous.
as the instrument is not
issuing mandatory injunction.
discretion
Inc.,
Maryhouse,
abuse its discretion
but the
too
simply
harsh con-
WALD,
Judge,
[¶ 37.] VON
Circuit
sidering
intangibility
the harm
suf-
dissents.
fered
Harksen.11
it
constitutes
abuse of
be inequitable
discretion.
It would
WALD,
Judge, sitting
[¶ 38.] VON
Circuit
$100,000
require
the destruction of a
sum-
KONENKAMP, Justice,
disqualified.
really
mer residence when there
is no burden
Similarly,
ineq-
Harksen.
would also be
WALD,
VON
Circuit Judge (dissenting).
pay
uitable to let
mere nominal dam-
agree
majority
I
with the
on issue
all,
ages
damages
or no
at
he built
when
one,
disagree
but
issue two
the in-
knowing
violating
structure
he was
the cove-
junction
ordered
the circuit court was an
*7
abuse of discretion.
remand,
On
we
direct
trial court
modify
injunctive
to
doing,
relief.
so
function
[¶ 40.] Our
on review is not to
the court should consider that the covenants
determine
whether
Court would issue the
only
in
to
twenty-five
type
injunction,
be
effect for about
same
of
but to determine
years.
injunction
more
A new
could be en- whether there was an abuse of discretion in
tered which would be
until
issuing
injunction.
effective
the cove-
an
An
of
abuse
discretion
expire,
nants
require
to strictly
“refers to a discretion
to an
exercised
end or
knowledge
prevented
10. Such
has
only
even
some
11. The
we
dissent claims
should not
at
look
applying
hardship
courts from
Harksen,
relative
test.
by
the harm suffered
also the
but
harm
166,
Foley, 89
at
(stating
S.D.
177 against, looking should be at the harm suffered justified by, and purpose not Maryhouse, every Inc. v. other cabin in the owner Slate and evidence.” reason (S.D.1991). Hamilton, 472, development, many 474 of whom are Creek joining trial court majority parties request not believe the named Harksen’s The did injunction, relief, issuing an person trying its discretion other abused of ordered type The but believed the enforce restrictive covenants. of the abuse of discretion because of this restrictive covenant was question The of outweighing nuisances, harm to Peska. prevent impairment of the at- need not even be ad- balancing equities property, tractiveness of the and to maintain was, case, I in this but even if it do dressed community. thé of -the The desired tone requiring removal of cabin not believe instability majority’s holding breeds into the was an abuse discretion. of property by permitting law Peska’s of cabin is, knowingly to remain as which cabin was The trial court did not need [¶41.] built in violation of a covenant. Is restrictive parties equities between the be weigh the Court, by placing simple a of restriction recognized Dakota has cause South not allowing Peska to sell the cabin for the apply hardship” does not when “relative test covenant, en- remainder restrictive willfully and with full the defendant acted couraging intentionally violate others cove- .plaintiff’s rights of knowledge anticipation minimal nants some restric- might Foley v. consequences which ensue. Many in the tions? other landowners Slate 160, Yankton, City 230 89 S.D. N.W.2d development could in contraven- Creek build 476, (citing 479 Concrete Com Wilson tion of the restrictive with little covenants County Sarpy, 189 Neb. pany v. destroy completely the cove- deterrence (1972)). Morgan See also purpose. , nant’s Veach, 139 P.2d Cal.App.2d (1943) (holding deliberately vio that one who SDCL'21-8-14(3), perma- Under [¶44.] placed building lot restrictions his lates injunction may granted nent be where mandatory injunction ... cannot avoid a prevent multiplicity necessary be would theory it will be the loss caused judicial proceedings. present Other accomplished). good disproportionate to future Creek landowners could build Slate cabins violation the restrictive cove- new injunction requiring Thé litigation. causing multiplicity of nants harsh, may be but it is his cabin remove though injunction requiring Peska Even warranted because Peska was warned of this his would a substantial to remove cabin remedy. possible Before Peska commenced him, injunc- loss to it is the reasonable construction, he received a letter from imposed to tion the circuit court could have pointed attorney, which Harksen’s ' future landowners from out the restrictive applicability in violation restrictive cove- homes his advised him that if property, and If the the fact that Court considers property, Harksen would constructed *8 or could have verified whether not he legal equita- all enforce building, violating covenant before including, but to in- ble means not limited building process once have halted the could junctive began relief. After Peska construc- started, considers the this action was tion, he was served the summons litigation potential floodgates of that will be matter, complaint in but continued to this cab- opened requiring not removal months. Peska build for three additional in, disproportionate not equities on notice that the covenants ex- mandatory injunction by the instituted enforced, yet would be isted and circuit court. Therefore, ignore warnings. chose weighing this not be the hard- Court should appropriate injunction The is one injunction is ship to if the enforced stop wrongful action undo that will against gained to Harksen. the benefit act conform to the covenant. wrongful Furthermore, that more residences majority only covenant stated no The parcel particular this built on Harksen while looks at harm suffered Therefore, property. if a residence is built covenant,
in contravention
appropriate injunction require is to the viola- tear it
tor move the residence or down.
Peska’s cabin was
have a home in Creek in summer Slate irrespective
Black Hills of the restrictive cov-
enant, majority stopping not doing that. The circuit court did
abuse its discretion and its should
be enforced.
John Plaintiff Appellant, SERVICE,
NORTHWESTERN PUBLIC corporation, Dakota South
Defendant, Industries, Inc.,
Dakota Pork South Da- corporation, Heuston,
kota and Mark
individual, Appellees. Defendants and
Nos. 20165.
Supreme Court South Dakota. April
Argued 1998.
Decided *9 Tonner,
Thomas M. Tobin of Tobin and Aberdeen, King, plaintiff appellant. Hoglund Evans, Sandra and Edwin E. Evans, Davenport, Smith, Hurwitz & Sioux Falls, for defendants and appellees Dakota Pork and Heuston.