Present: All the Justices
ROBERT E. TURNER, III
v. Record No. 031950 OPINION BY JUSTICE DONALD W. LEMONS
June 10, 2004
MICHAEL A. CAPLAN, ET AL.
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
In this appeal, we consider the proper construction of
certain restrictive covenants and exceptions thereto. Also,
we consider whether the pasturing of a horse on certain lots
within the subdivision in question constitutes a nuisance.
I. Facts and Proceedings
In 1975, Robert E. Turner, III ("Turner") acquired a
101.4 acre tract of land in Pittsylvania County, Virginia, and
thereafter established a subdivision known as Windermere.
This dispute concerns the use of Lots 4B, 5, 6, and 7 in
Section D of the subdivision which will be referred to herein
as the "pasture."
In 1979, Turner recorded a declaration of protective
covenants, restrictions, and conditions (the "Agreement") of
which relevant portions provide:
1. All of the lots above described shall
be used exclusively for residential
purposes.
. . . .
3. Only one single family dwelling may be
erected on any lot, but in addition
thereto, there may be erected a car garage
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and other structures incidental to the use
of such property for residential purposes.
. . . .
5. No nuisance shall be maintained or
permitted on any of said lots.
6. There shall be no raising or harboring
of pigs, goats, sheep, cows, or any other
livestock or poultry on said lots, with the
exception of a usual domestic pet. This
restriction shall not be applicable to Lots
Nos. 1-7, inclusive, Section D.
Covenant 10 further specifies that should a court invalidate
any one of the Agreement's covenants, all others remain in
full force and effect.
Turner sold most of Windermere's lots; however, he
retained ownership of the pasture. Michael and Carol Caplan
("the Caplans") and Grady and Martha Carrigan ("the
Carrigans") reside on lots adjoining the pasture.
At some time in the early 1980's, Turner kept a horse on
the pasture for approximately six months. Again, in the late
1990's a horse was periodically kept on the pasture. Finally,
since 2002 a horse has been kept periodically on the pasture
depending upon the time of year and the weather.
In 2002, the Caplans filed a bill of complaint for
injunctive relief with the Circuit Court of Pittsylvania
County asking the court to permanently enjoin Turner from
placing a horse on the pasture. Thereafter, the trial court
granted the Carrigans' motion to intervene in the lawsuit.
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The trial court held that the maintenance of a horse on
the pasture violated the Agreement because it was inconsistent
with the intent to create a residential subdivision and
because the trial court held that keeping a horse at that
location constituted a nuisance. The trial court entered a
permanent injunction forbidding Turner from keeping a horse on
the pasture. Turner appeals the adverse judgment of the trial
court and alleges that the trial court erred in its judgment
that maintaining a horse on the pasture was inconsistent with
the intent of the Agreement, that the specific exception from
the ban upon livestock for the pasture was unreasonable, and
that keeping a horse on the pasture was a nuisance.
II. Standard of Review
The trial court's order presents findings of fact and
law. We will not disturb its factual findings unless they are
plainly wrong. The trial court's interpretation of the
restrictive covenants is, however, a question of law, and we
review those conclusions de novo. See Wilson v. Holyfield,
227 Va. 184, 187, 313 S.E.2d 396, 398 (1984).
III. Analysis
The trial court found that Turner intended to create an
exclusively residential neighborhood when he formed the
Windermere subdivision. The trial court further concluded
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that placing livestock on any of Windermere's lots is
inconsistent with this intent.
Covenant 1 of the Agreement is clear and unambiguous in
restricting Windermere's lots exclusively for residential
purposes;* however, Covenant 1 is subject to an equally clear
and unambiguous exception in Covenant 6. Covenant 1 states
that all of the lots "shall be used exclusively for
residential purposes." Covenant 6 prohibits raising or
harboring of livestock or poultry on the lots but further
states that, "[t]his Restriction shall not be applicable to
Lots Nos. 1 - 7, inclusive, Section D," which includes the
pasture. We must construe the Agreement as a whole and, if
possible, interpret its provisions consistently with one
another. First American Title Ins. Co. v. Seaboard Sav. &
Loan Ass'n, 227 Va. 379, 386, 315 S.E.2d 842, 846 (1984); Tate
v. Tate, 75 Va. 522, 527 (1881). In First American Title, we
said:
it is the duty of the court to construe the
[Agreement] as a whole, and in the
performance of this duty it will not treat
as meaningless any word thereof, if any
meaning, reasonably consistent with other
parts of the [Agreement], can be given.
Id. at 386, 315 S.E.2d at 846 (quoting Pilot Life Ins. Co. v.
Crosswhite, 206 Va. 558, 561, 145 S.E.2d 143, 146 (1965)).
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Adhering to this principle, we hold that Covenant 1's
residential purpose, when read in context with Covenant 6,
does not exclude raising or harboring livestock or poultry.
Such activity is prohibited under Covenant 6 for all lots
except Lots 1 through 7 of Section D, which includes the lots
comprising the pasture. Turner's reservation of this right is
clearly expressed.
Further, Turner states that the trial court erred in
holding that exempting the pasture from the covenant
forbidding raising or harboring livestock or poultry is
unreasonable. While we are aware of case law holding that use
of property may not be unreasonably restricted, see Hercules
Powder Co. v. Continental Can Co., 196 Va. 935, 939, 86 S.E.2d
128, 131 (1955), counsel and the trial court cite no cases
applying the concept of "unreasonability" to the exemptions
specifically allowing the use of restricted land for
particular purposes.
In holding the exemption unreasonable, the trial court
apparently relied on the fact that Turner, as the original
grantor/owner, is the only Windermere landowner exempted from
Covenant 6's restriction. This assumption is incorrect
because the exception to restrictions in Covenant 6 applies to
*
Covenant 3 further suggests residential purposes by
restricting construction to "one single family dwelling . . .
and other structures incidental to residential purposes."
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Lots 1 through 7 of Section D. The Carrigans, who are
appellees herein, own Lots 1 and 2B.
Additionally, the property owners knew at the time they
purchased the lots, and assented to Windermere's covenants,
that Lots 1 through 7 had been exempted from the livestock
restriction. Presumably, they considered the restriction and
its exemptions reasonable or they would not have purchased
their lots. On this record, we hold that the trial court
plainly erred in concluding that the exemption here was void
for unreasonableness.
Finally, Turner asserts that the trial court erred in
holding that "to allow the placement of livestock on lots in
the subdivision would also create a nuisance in violation of
Restriction No. 5." Of course, the law of nuisance exists
independently of restrictive covenants. The fact that a
prohibition upon maintaining a nuisance is found in a covenant
adds nothing to analysis of whether the facts presented
constitute a nuisance.
The case of Bragg v. Ives, 149 Va. 482, 140 S.E. 656
(1927), involved the proposed intrusion of a funeral home into
a residential neighborhood. In the course of determining
whether the trial court erred by dismissing the bill for
injunctive relief upon demurrer, we considered what is
necessary to sustain a cause of action for nuisance. Quoting
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decisions from other jurisdictions and secondary authorities
with approval, we stated:
"In all such cases the question is whether
the nuisance complained of will or does produce
such a condition of things as, in the judgment of
reasonable [persons], is naturally productive of
actual physical discomfort to persons of ordinary
sensibilities and of ordinary tastes and habits,
and as, in view of the circumstances of the case,
is [un]reasonable and in derogation of the rights
of the complainant."
. . . .
"The decisions establish that the term nuisance, in
legal parlance, extends to everything that endangers life
or health, gives offense to the senses, violates the laws
of decency, or obstructs the reasonable and comfortable
use of property."
Id. at 496-497, 140 S.E. at 660 (citations omitted). See also
Martin v. Moore, 263 Va. 640, 648, 561 S.E.2d 672, 677 (2002);
Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661,
667 (1992).
Although the trial court does not expressly use the term
"nuisance per se," the language of its order embraces the
concept. As we have previously noted, "while there is some
confusion in the books as to the meaning of the term nuisance
per se, the tendency of modern times is to restrict its use to
such things as are nuisances at all times and under all
circumstances." Price v. Travis, 149 Va. 536, 547, 140 S.E.
644, 647 (1927).
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The trial court's order is too broad and improperly
expresses its judgment in terms that can only be interpreted
as a holding of nuisance per se. First, the order refers to
"livestock" when the pasturing of a horse is the issue.
Second, the order refers to "lots in the subdivision" when the
only lots in question constitute the "pasture." Finally, the
trial court erred in its entry of a judgment that effectively
holds that the mere "placement" of livestock, including a
horse, on the lots at issue constitutes a nuisance at all
times and under all circumstances.
IV. Conclusion
We hold that the trial court erred in its interpretation
of the legal effect of the covenants in the agreement.
Further, we hold that the trial court erred in its entry of a
judgment that is too broad in its application and, in effect,
holds that the mere placement of a horse on the pasture
constitutes a nuisance per se. We will reverse the judgment
of the trial court and enter final judgment for Turner.
Reversed and final judgment.
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