(dissenting in part).
I agree with what I assume is the effect of the main opinion: remanding the case for trial of the issues other than the one resolved therein. But I find myself in disagreement with statements therein indicating that it should be ruled as a matter of law that Covenant No. I is a covenant restricting the use of the defendants’ property. From my consideration and analysis of the covenants, I am left in doubt as to the correct conclusion as to what the parties should be deemed to have intended. I therefore believe that this issue should also be included on the trial and that the parties should be permitted to present whatever competent evidence they desire pertaining to it. That there is a basis for being uncertain about the meaning and proper application of the covenants could hardly be better pointed up than by the fact that the trial judge, presumably a reasonable man, has come to one conclusion, whereas, Judge Croft and my colleagues who concur with him, with respect to whom the same presumption obtains, have come to the opposite conclusion.
I offer certain further observations in support of my opinion that the issue should be resolved by trial.
A proper analysis of the problem here presented should proceed from the foundational proposition that the owner has a right to the free and uninhibited use of his property, except only as it may be expressly limited by law or by contract. We are *353here concerned with the latter. As is recognized in the main opinion, referring to Parrish v. Richards, any such restriction must be set forth in clear and definite terms; and in case of uncertainty or ambiguity, doubts should be resolved in favor of freedom of use of property.1 It is the responsibility of a party seeking to enforce such a covenant to prove the existence of a valid covenant and of the conditions prerequisite to its enforcement.
The next proposition of importance here is that both of the defendants’ houses were constructed as duplexes; that they have been so used for several years; and that they cannot now be charged as violative of the construction covenant. Covenant No. Ill which deals with the submission of a building plan for approval has admittedly never been complied with by the pláintiffs in any respect, and it provides that “In any event, if no suit to enjoin the erection of such building * * * has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.” There is therefore no possibility that the defendants could be held in violation of Covenant No. III. Nor is it even so contended. It is also true that in the other covenants, which relate to the use of the property, there is no restriction against the use of a residence as a duplex.
We then must turn to Covenant No. I, which is the fulcrum upon which Judge Croft bases his deduction that there is a covenant against use of the premises as a duplex. It(will be noted that that covenant does not contain either the word “use” or any synonym or substitute for it. The only phrase that could be interpreted as pertaining to restriction of use would be the words “permitted to remain.” But these words are the concluding words of a series: “ * * * no structure shall be erected, altered, placed or permitted to remain on any such residential lot.”
The defendants’ point of view is that the commonly accepted rule of construction should be applied, under which, the phrase “permitted to remain” would take character and meaning from the preceding words “erected, altered, [or] placed” and thus would be understood as referring to construction.2 On the other hand, the plaintiffs contend that even though the phrase in question does not say so in precise words, its reasonable interpretation would be that it restricts the “use” of the property. Although the interpretation of documents is usually for the court, in view of this uncertainty, it would be permissible to take evidence as to the background, surrounding circumstances, and the interpretation the parties have placed upon *354the covenant, to determine its meaning.3 Having a bearing on this would be the facts that the defendants constructed their homes as duplexes without objection and have so resided in them for several years.
For the foregoing reasons it is my opinion that the remand for a trial upon the other issues should also include trial of the issue as to what the parties should be deemed to have understood by the covenants in question.
. 8 Utah 2d 419, 336 P.2d 122.
. gee statement re rule of noscitur a sociis in Hatch Co. v. Public Service Commission, 3 Utah 2d 7, 277 P.2d 809 ; 66 O.J.S. p. 607.
. See Charlton v. Hackett, 11 Utah 2d 389, 360 P.2d 176.