*1
John D. Kemp, Individual Brown and Louise P. R. composing Direc the Cloudcroft Directors, tory, Board of its official Plaintiffs-Appellants, FARMER, Defendant-Appellee.
William E. 8627.
No.
Supreme Mexico. Court of New
April 28, 1969.
Rehearing Denied June 1969.
Garland, Martin, Mary Simp- Martin & Goggin, Cruces, appellants. son Las Overstreet, Fettinger, Alamo- Bloom & gordo, appellee.
OPINION MOISE, Justice. commenced proceeding was
This prop- plaintiffs-appellants, the owners of erty Place of Cloudcroft known, the “Of- and as it is sometimes the Cloudcroft ficial of Directors of Board defendant-appellee Directory,” against the Lots purchaser under contract of Cloudcroft, seeking to en- a store operating join defendant violative alleging the same to be thereon, alleged restrictive covenants of certain trial, After applicable lots. to said sought and en- refused relief court *2 judgment dismissing tered its Following com- description of plaint. appeal This conveyed, followed. part and as of the habendum clause, following is stated: In to determine if the trial court order “* * * correctly, party; The necessary ruled it second that we for it- self, its assigns, by successors and facts in view the some detail. acceptance conveyance of the above of year Alamogordo In the 1900 the Im rights described, real estate and above provement Company platted a tract of hereby agrees covenants contracts and to land in the Sacramento Mountains of and party it first that fa- [with] County, Thereafter, Otero New Mexico. terms, miliar stipulations, with the con- purchasers lots, deeds issued to of were tracts agreements and contained in the containing setting plan recitals forth the of usual of form deeds heretofore executed development operation and of subdivi party conveying the first Real Estate provisions sion. Included therein were re purchaser said Place of Cloudcroft to land, stricting the use of the wit: to hereby thereof and it that covenants and “ * * * intoxicating liquors shall agrees to and party, with first beverage never manufactured or sold ownership, disposition any and sale * ** prem upon asor a medicine said of the real estate situated within such * ** thereof, any part ises or and that Cloudcroft, thereto, Place adjacent premises such nor thereof shall sell, it dispose of and transfer purposes ever used for immoral or for subject same to like terms and conditions commerce, purposes of trade or adopted by those heretofore used and * * * excepted; and houses hotels *.” party the first and embraced in deeds Alamogordo Improvement aforesaid, In it executed so far as Company it map practicable an is at and all filed amended Cloud- times purpose adding croft for the stated do so.” extending
and and in- subdivision developed It was further at trial originally crease the area of land intended conveyances all property in Cloudcroft to be In included. the dedication it is stat- quoted contained the language restrictive ed that this done was : original above from the deed Lots 11, Block 4. “* * * general under the same scheme use, control, plan purchase, and for the Immediately Cloudcroft, north of government enjoyment and owners separated Avenue, therefrom Burro thereof, therein, parts lots Cloudcroft, North tract dedicated with- existing enjoyed by imposed owners out restrictions such as those on days early In Cloudcroft, Cloudcroft. a fence was original place in such so down the center of Burro maintained Ave- original place gate vehicles, nue, with one thereto, hereby and the additions made pedestrians, two the in- stiles held, controlled, of, disposed shall all be tention that Cloudcroft be main- should enjoyed according managed, to one tained as a summer resort the exclu- homogeneous the same identical use of its residents and friends sive ** plan, guests, free traffic from vehicular year, Alamogordo danger same Im- the attendant to children. In addi- tion, Company provement Cloud- built the deeded Lot there was Cloud- visitors, Company croft owned croft summer Lodge, hotel for by it in Cloudcroft as shown the amend- connection with which services inciden- available, map. operation tal to such ed appendix copy original * A Lots is set record deed to out opinion. variety. facilities, bar, shop, trucks of diesel railroad viz., dining curio recreation, original alley, has been discontinued. Winter bowling and a theatre. including skiing, has been added and thereafter was in 1911 Lodge burned today A summer resort activities so golf course rebuilt Block 30. *3 area, community year-around is pro a resort shop built. was also permanent and there are numerous resi- only could reached In the area seeking to serve those both summer dents Later, by wagon railroad a branch road. recreation, and as as the tran- winter well The Alamogordo. it from line built was to highways. popu- the The sients who travel Directory, the established Cloudcroft persons of lation Cloudcroft was 251 governing original the deeds to serve as 1950. U.S. Bureau of the Census. U.S. fence, Cloudcroft, maintained the body of Pop., Part New Census of 1960 Vol. roads, and a modest park, the streets the it was 464. U.S. Mexico. 1960 Census and, police sanitary and facilities force supra. as Pop., Today, of one wit- guards provided a for guard or winter, the testified, are “natives” of ness there 600 Money property. pay to these ser- the Cloudcroft. through lev- vices was assessments raised highway traverses the subdivision of Directory. by the In the ied and collected passes of Cloudcroft. It to the south early days, and animals were deer other Park, leaving and Zenith Block 1 bisects There in Zenith Park. maintained part part the and the north to south of few, any, year-around if residents. Resi- sepa- highway. 1 was Because Block the months, spend would dents summer rated from the balance of subdivision September, generally from June it, longer physical part no of and but was and would close vacation, schools were in closely aligned North was more with year. houses for the balance Cloudcroft, pre- the restrictive covenants summer, people During the would come viously pertinent (except Block 1 Lodge stay at and houses held bound restric- southeast corner periods longer or time. shorter of Hendricks, 57 N.M. tions in Neff v. time, passage of numerous With (1953)) P.2d 1025 lifted already not- have intervened. As court decree our decision ed, original Lodge burned and was Neff, P.2d 67 N.M. Mershon Block There built in 30. are no (1960). Park and animals Zenith of of that have taken Some conveyed purpos- has been Park for school place have been detailed above. es, school erected therein. fact Our attention also directed is permitted long since been to dis- fence immediately to the east defendant’s of and, appear originally whereas Cloudcroft facing is located practically abandoned, except during with fifteen units which Buckhorn Cabins summer, many people there are now week, day rented summer are year Place who live there the around. The Situated to the south winter. Cloudcroft, together adjoin- other Cabins, is a Catholic Wayside west joined in- ing have been subdivisions highway, the Directly across the Church. corporated Village Only Inn, restaurant, operated. Ski by municipal controlled board. onto face three blocks the subdivision growth Contributing has been the They highway. side of the the south facing formerly All improvement highway, and 5. blocks occupied by Buckhorn Cab- Highway known New Mexico 83 but is no other above. There ins, mentioned Highway U.S. 82. This road the three operation in commercial increasing carries numbers of tourists and, except defendant vehicles, the store of including van-type blocks commercial sign large past on Block commercial adver- ed in the exists sur- tising Lodge. rounding All the abut- area.” ting the south side of the is now possible practi- That “15. it is not designated a zone the Vil- commercial carry original purpose cal to out the lage only excep- With one Cloudcroft. development Original Place of tion, property immediately ad- none of the by continuing Cloudcroft as of 1906 jacent presently being to Farmer’s store is restrictions of use as far the Defend- purposes. utilized Indeed, for residential premises ant’s is concerned.” occupant owner residence inequitable That it “17. would be lying west of the church testified that no attempt the court at en- this time *4 highway property one was interested in the against force restrictive the covenants purposes, one reason lots, Defendant’s when violations point the at this is an situated on restrictive covenants have existed for incline and that diesels make considerable many, many years lots, upon as said well pulling up noise the hill. Before defendant surrounding as in the area.” purchased it, it, improved and started the brief, Appellants, argue in their that the operates, premises store which he the application interpretation court’s and of used, in successively, were the covenants was error “motels” cafe, as a catering so-called “teen center” today should be considered as included selling candy children snacks, and and “boarding within the term and ho- houses and as of a rental cabin business. excepted tels” the from restrictions. Fur- motels, Several in addition to al- those ther, professional that neither they; assert mentioned, ready operations with incidental homes, offices m nor incidental business restaurants, such as shops curio and other to, with, prop- connected or conducive to facilities of interest to tourists or those er use of the trade constitutes seeking recreation, summer winter prohibited by commerce restric- located in the subdivision. There are a They argue tions. also is laches not estab- few instances professions of businesses or showing lished without of unreasonable being conducted from homes individuals’ delay acquiescence. and intentional A telephone restricted area. The com- sub-point to the effect that there has been pany there, has office is there change no such of conditions sufficient to alley bowling and a opera- cable television render the covenants unenforceable is tion within the subdivision. The trial court and, argued in some detail in our view of concluded, material, insofar as as follows: case, it decisive. discuss first. surround_ “10. That the They immediate Five elements are discussed.
area to (1) Defendant’s business contains construction travel; property fact (2) increased numerous violations of the restrictive may now be more valuable for business commerce, covenants trade and purposes; finding (3) the trial of which has been with- allowed to exist court that enforcement covenants is complaint out from either the Board of feasible; (4) not the fact the has Directory Directors of the Cloudcroft commercial; been (5) zoned as individual owner the re- presence claim that stricted area of Cloudcroft.” prop- continues value the other “12. That the dominant estate erties in the which subdivision. may by be held the Plaintiffs not has Without intention minimizing injured by damaged De- [or] particular matters outlined above, dis- present premises fendant’s use his briefs, length at cussed some we be-
trade purposes, or commercial which is problem lieve answer to can best be no different by considering character than picture has exist- reached the broad as words, appeal, On fect. we reversed In other because record. shown change only trial court erred considering in Cloudcroft there been such changes had occurred imposed as between Hendricks, supra, Neff against defend- when was insti- their enforcement make tuted, and 1957. cases We determined that first consider inequitable? We ant assist- court shoxxldhave considered may be of the cumula- some decided us which effect In this tive the date arriving at a conclusion. ance in covenants, Hendricks, supra, connection, restrictive time the Neff Concerning changed was filed. action con- The case involved particularly instructive. court, trial ditions found oth- restric- same subdivision same it, er considered we had the An not concerned. which we are tions with say: prohib- granted, injunction sought and portion (di- of Block use of a iting the opinion in a “The court memorandum the subdivision from the rest of vided appellants it filed stated as- filling auto- highway) station serted conditions as fol- foxxr trial court found as of mobiles. The (1) the new and in- lows: had been no abandonment 1951 there activity along catering creased to tour- *5 plan general purposes and of the waiver ists, permanent (2) an in resi- increase neighborhood to result in destruc- the so as dents, (3) abandonment of the railroad the restrictions. the benefits of tion of town, formerly (4) served quote opinion affirmed. from We We highway the location of so as of the following discussion geographically 1 make Block a place that : (1951) that had taken time North concluded then that these exist- conditions a “Appellants assert there been has previous ence case 1951 neighborhood change in condition heard, ‘no mate- and that there had been the restrictions without which renders impact com- rial increase on area. must conceded It value mixnity incor- time.’ This was since change. a has been decided In there 16, Finding qxxoted above. porated 140 to 150 resi- there were some he did note —at least “The coxxrt cottages in dential the area. Other sub- addition- following not mention —the did cottages dwellings stantial and modern proven facts to have occurred al It has all been constructed. have appellants must be assert city, yet the conveniences of still along with other considered so free disturbances common to (1) date: which occux-red before business districts. The Southern Pacific great- highway paved has with operate ceased to its rail lines in the thereon, (2) traffic conver- increased area. Bureau of Roads has Public building cor- of the on southeast sion extended a trans-continental cafe, (3) 1 construc- ner of Block into and across it. into This crosses City tion Hall on the appellants’ property but a suffi- leaves parking lot property (4) use of cient area construction of hotels the benefit of the bxxsinesses Obviously, houses. these of all North Cloxxdcroft axid for trxxcks changes do not lessen benefits kinds, use of the occasional (5) they Rather, restrictions. enhance their other commercial activities * *”* value. example place which milk as for Neff, supra, declaratory Price’s Creameries Mershon v. was distributed least, action, years. say judgment raised for some two To changed should have been and conditions these additional items circxxmstances on together Block 1 in 1957. The trial coxxrtdeclared the court considered changes present and a be in full determi- restrictions to force ef-
359
nation made as
the restric-
parties
whether
restrictions,
to such
they
tions should continue
be maintained
can no
out,
be carried
on Block 1.”
this without
neglect
fault or
of him who
seeks to be relieved
equity
court of
Following remand,
appears
from their observance, such restrictive
court removed the restrictions on Block
covenants should be extinguished.
In
except for the southeast corner where Ski
such
doctrine,
instance
expressed
located,
property-
Inn is now
this
in the maxim lex
cogit
impossibi-
non
ad
above,
involved in
1951 case. As noted
* *
lia,
apply;
would
Block 1
directly to
is located
the north
across the
from the
here
Improvement
Alamogordo
Co. v.
involved.
40, 46,
Prendergast, 45
109
N.M.
P.2d
conditions,
said, “Change
(1941), we
257
It
apparent
arising
from the
cases
two
refusing equitable
to warrant
the court
out of
very
same subdivision as
in
relief,
importance
must
case,
stant
and particularly from the lan
purpose
amount to a defeat of the
guage quoted
Hendricks,
from Neff v.
su
**
Annot. 4 A.L.R.
See
restraint
pra,
recognized
impor
1111; Berry,
2d
Restrictions
Use
tance of
conditions and circum
Compare
Property,
(1915).
403
Real
§
in deciding
stances
whether restrictive cov
Butler,
N.M.
418 P.2d
Williams
waived,
enants have been
en
should be
Fallon, 44
(1966);
Cal.2d
Wolff v.
quote
forced.
additional
;
(1955)
v. Han
284 P.2d
Hirsch
language
Hendricks,
from Neff v.
supra:
cock,
Cal.App.2d
P.2d
“* * *
evidence discloses
[T]he
;
Rindge,
Cal.App.2d
(1959)
Bolotin
*6
show,
picture
that a
alley and
bowling
741,
Cal.Rptr.
v.
(1964);
41
Paschen
376
pool
permitted
oper
56,
room have been
Ill.App.2d
Appendix
30g COMPTON, NOBLE, unwilling Chief to find the so radical as Justice to frustrate (dissenting). the intention parties, Justice justify violating to is restrictions. It majority Believing have failed general doctrine that one lot be cannot correctly apply legal well-established separate considered apart its principles undisputed this facts of lation to the entire restricted area. Those case, agree we find ourselves unable who bought have lots reliance the re- by disposition with either the of this case strictive protec- covenants are entitled to majority, reasoning or the tion prohibited regardless invasion they reach their result. of how close may business crowd around generally have one Courts used of two 70, them. Mitshkun, Swan v. 207 Mich. refusing theories in to enforce restrictive 529, adjoining N.W. and the fact that presumption (1) covenants —either surrounding property used for parties intended that the covenant ter- right proper- business does alter the purposes minate it for which was ty preserved owners pur- to have it for the designed longer accomplished; no could poses for they presumed must be or (2) applying balancing-of-inter- purchased have great weight it. See approach ests greatly where because of authority cited in Continental Oil v.Co. conditions, changed enforcement the re- supra. Fennemore, Compare Trustees only strictive covenant would not not bene- College Thacher, 311, Columbia 87 N.Y. seeking fit those enforcement of the re- where the tract in downtown New York striction but would also inflict serious entirely surrounded business and hardship on seeking the one to abolish the railway elevated station was located direct- restriction. front, rendering privacy quiet im- majority construe our decisions possible. falling within the latter classification. See view, great majority In our Chuba Glasgow, 61 N.M. 299 P.2d require satisfactory proof courts con 744, where said cove restrictive ditions have changed frustrate so nants extinguished should be where the parties creating re intention surrounding area are so proof strictive covenants and that the sub original purposes radical frustrate division, by thereof, reason longer no parties they and intention of the so that valuable as a residential tract. See the can Compare no be carried out. cases cited in the excellent discussion of Hendricks, Neff v. N.M. 259 P.2d Note, 11 N.Y.U.Inter.L. judgment where we affirmed the Note, Ky.L.J. Rev. 94-96. See also the lower court enforcing restrictive 292, 297-300, which discusses factors five applicable covenants 1 in Cloud- determining to consider in whether Neff, croft. See also Mershon v. 67 N.M. sought substantially benefits can be se 355 P.2d where restrictive Property cured. See also Restatement of § (except covenants the southeast corner 564, saying that courts will refuse to en held bound Neff v. only force such restrictive if Hendricks, supra,) were It removed. conditions have so as to make Neff, Comp noted in Mershon v. impossible longer secure a substantial ton, Justice, then Chief dissented and No degree the benefits intended be secured ble, Justice, participate. did not performance covenant. leading A identical case almost view, majority fallen facts of the case is our instant Continental Oil Fennemore, court, Co. v. into same error as did the trial 38 Ariz. P. where, surrounding they support though even the streets find substantial finding the trial that enforc- the restricted residential area had become court *10 arteries, ing in- important traffic lots the court was restrictions two not benefit their enforcement unless conditions have so in this action would volved true, radically changed they simply that be cannot remaining Even if lots. reasons, be consid- For these we feel rule that all of lots must be enforced. Fennemore, judgment appealed that the should be Oil Co. v. ered. Continental and, accordingly, supra. rule of reversed from the When the correct law dissent sup- majority applied, finding opinion. lacks substantial port changes here in the evidence. The COMPTON, J., concurs. essentially the residences are located in this people which the live. It is entirely are in character.
case minor
apparent im- that the intent of those to us to ex-
posing the restrictive
cept
permit,
and to
without
from them
necessary
violation,
things
striction or
those
today lots is to door by as- fronting
blocks properties to next extend
sociation in a short adjacent that, blocks so alone,
period, by extensions entire restricted
will be removed from the Note, 11 N.Y.U.Inter.L.Rev.
tract. See fact, in our view the 87. As a matter
change in location forms opinion. majority real basis for agree unable to likewise majority, cita-
theory without authority, reject buffer zone
tion of view, refusing to enforce
doctrine. our immediately the block restrictions highway, as was done
north of new Neff, supra, established that
Mershon zone. Removal of restrictions buffer immediately
affecting the south block ultimately result in such adjoining blocks the south.
removal
Believing that such restrictive conditions purchasers protection imposed aas estate, great majori- believe real
ty require reasoned decisions of the better