(dissenting) — I respectfully dissent. The majority’s decision never directly addresses the major issue in this case: Is the document entitled "Short Plat 79-80 by Survey” an enforceable covenant running with the land? The majority lists, but does not discuss, the prerequisites of an enforceable covenant:
(1) [T]he covenants must have been enforceable between the original parties, such enforceability being a question of contract law except insofar as the covenant must satisfy the statute of frauds; (2) the covenant must "touch and concern” both the land to be benefitted and the land to be burdened; (3) the covenanting parties must have intended to bind their successors in interest; (4) there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants; and (5) there must be horizontal privity of estate, or privity between the original parties.
Leighton v. Leonard, 22 Wn. App. 136, 139, 589 P.2d 279 (1978) (footnotes and citation omitted).
Instead of addressing these requirements, the majority attempts to resolve Garwall’s contention that the document applied only to the four "short-plat” parcels. Of course, the linchpin of the majority’s reasoning is its implied conclusion that, because the "Short Plat 79-80 by Survey” applied to all of the parcels in the subdivision, it created a valid covenant. If we were to assume the docu*19ment applied to all of the parcels, it is far from clear it should he treated as an enforceable covenant. On the record before us, there is at least a factual question as to the intent of the original parties.
The majority’s (and the trial court’s) refusal to consider extrinsic evidence of the parties’ intent is apparently based on the conclusion the parol evidence rule bars such evidence. But even in a contractual dispute, the parol evidence rule does not preclude extrinsic evidence as to whether a contract actually was created. Bond v. Wiegardt, 36 Wn.2d 41, 48, 216 P.2d 196 (1950); see 3 Arthur Linton Corbin, Corbin on Contracts § 577 (1960). The extrinsic evidence offered by Garwall here was relevant to whether the parties intended the "Short Plat 79-80 by Survey” to be enforceable as a covenant.
The majority cites three cases for its assertion that "[l]anguage in a plat indicating the use of the land is restricted to residential purposes is construed to prohibit any commercial or business use of the property.” Majority at 15. The issue in all of these cases was how the restrictive covenants should be interpreted; none establishes that a plat document like the one in this case creates an enforceable restrictive covenant. In Metzner v. Wojdyla, 125 Wn.2d 445, 886 P.2d 154 (1994), and in Mains Farm Homeowners Ass’n v. Worthington, 121 Wn.2d 810, 854 P.2d 1072 (1993), the issue was not whether the language created valid restrictive covenants, but how the language should be interpreted; there is no indication in either case that the language was contained in a plat. The covenant at issue in Hagemann v. Worth, 56 Wn. App. 85, 782 P.2d 1072 (1989), apparently was contained in a plat, but there was no question that the language created a restrictive covenant; the issue before the court was how the covenant should be interpreted. In this case, by contrast, the major issue before us (never resolved by the majority) is whether the document created a valid restrictive covenant.
Moreover, even if the surveyor’s document were a restrictive covenant, our role is to give effect to the parties’ *20intent. Mains Farm Homeowners Ass’n, 121 Wn.2d at 815. This intent is determined by examining the clear, unambiguous language of the entire document; the court should look at extrinsic evidence of the parties’ intent only when the document itself is ambiguous. Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 344, 883 P.2d 1383 (1994). The language at issue here is:
3. This plat is approved as a residential subdivision and no tract is to have more than one single family residential unit. Conversion of any lot to other than its authorized occupancy must be in accordance with authorizations associated with separate application and procedure.
The majority concludes that this language "unambiguously precludes a commercial mining and rock crushing operation.” Majority at 15. On the contrary, the only thing the language unambiguously precludes is more than one single residential unit on each tract; it does not expressly or impliedly restrict any commercial uses of the land, much less mining or rock-crushing. Because the language is ambiguous, the trial court should have considered extrinsic evidence of the parties’ intent.
I would reverse the trial court’s summary judgment order granting an injunction and remand for resolution of these factual questions.
After modification, further reconsideration denied October 21, 1997.
Review granted at 135 Wn.2d 1016 (1998).