dissenting.
I respectfully dissent.
The majority opinion holds that when the correct rule of law, known as the doctrine of “changed circumstances” or change of “conditions” is applied, the trial court’s second and third findings of fact are not supported by substantial evidence; therefore, reversal of the trial court’s judgment is required. I disagree.
When assessing the enforceability of a restrictive covenant, the totality of the changes must be reviewed. If all of the changes together render enforcement of a restrictive covenant inequitable, such restrictive covenants should be extinguished. Chuba v. Glasgow, 61 N.M. 302, 299 P.2d 774 (1956). In the present ease, the trial court found that the use, character, and enjoyment of the property covered by the restrictive covenant has materially changed since the covenant-was put in force. These findings are amply supported by the record.
The restrictive covenant prohibiting the manufacture, sale, and disposition of intoxicating liquors within a platted area of the town, was first set out in the original deeds in 1898. Since that time, issues concerning the validity of the restrictive covenant have been before this Court. See Alamogordo Improvement Co. v. Prendergast, 45 N.M. 40, 109 P.2d 254 (1940); Alamogordo Improvement Co. v. Prendergast, 43 N.M. 245, 91 P.2d 428 (1939); and Alamogordo Improvement Co. v. Hennessee, 40 N.M. 162, 56 P.2d 1127 (1936). However, since the original incorporation of the Alamogordo Improvement Co. in 1898 and the subsequent holdings of this Court in the cases construing the covenant, the town of Alamogordo has changed substantially. The majority has failed to consider the changes that have occurred since the date the restrictive covenant was created, and not only the changes that have occurred since the date of the most recent suit, in which the restrictions were upheld. See Mershon v. Neff, 67 N.M. 311, 355 P.2d 128 (1960). Since 1898, the city of Alamogordo has changed substantially, from open, uninhabited prairie land to a city with a population of over 25,000. There has been a tremendous economic change since the restrictive covenant was created. The establishment of Holloman Air Force Base and the development of tourism have sparked economic growth in the community. Tracts of property previously used for agriculture now have businesses located on them.
The original purpose of the restrictive covenant was to facilitate the development of the original Alamogordo townsite. This development has been completed; therefore, enforcement of the covenant no longer serves a valid purpose. Moreover, in recent years, the Alamogordo Improvement Company has routinely executed waivers of its right to reverter under the restrictive covenant, a significant change from the days when it brought suits in an effort to enforce the covenant. Attitudes of the citizens also reflect the changes which have taken place' within the community. In Alamogordo, an election to allow the sale of wine and beer received overwhelming support.
When conditions change, as in the present case, restrictive covenants should not be allowed as a barrier to progress and change. There has been such a change in the conditions which existed when the covenant was first imposed so as to defeat the intended objects and purposes of the covenant; therefore, enforcement is no longer necessary to afford the protection originally contemplated. See Montoya v. Barreras, 81 N.M. 749, 473 P.2d 363 (1970); Williams v. Butler, 76 N.M. 782, 418 P.2d 856 (1966); Mershon v. Neff, 67 N.M. 311, 355 P.2d 128 (1960).
There was substantial evidence in the record for the trial court to determine that the restrictive covenant should no longer be enforced. I would therefore affirm the judgment of the trial court.