dissenting.
Covenant 6 is not intended to be a setback regulation preventing homeowners from building on the middle or southern third of their lots. Instead, the covenant’s reference to the “north one-third” is meant to fix the point from which the obligation to clear trees on downhill lots should be measured. If one were to build a house entirely on the north one-third of a lot, the measurement point would be set at an elevation determined by the viewing area in the house. From this point, a sighting downhill could be taken to determine what trees obstruct the view. The same point can be determined by hypothesizing a typical house built on the north one-third of a lot, even if no house is built or if one is built outside the confines of the north one-third.
To illustrate my disagreement with the majority opinion I offer the following example. Assume that a house is built entirely on the north one-third of a lot. The covenant should be fully enforceable based on a measuring point established from the viewing area in the house. Assume next that the owner of the house decides to add on and builds a wing of the house onto the middle one-third of the lot. Should the covenant become unenforceable when this addition is built? If I understand the rationale of the majority opinion correctly, the answer to this question is that the covenant becomes unenforceable because the dwelling is no longer within the “north one-third” of its lot, even though the measuring point from which the obligation to clear trees on downhill lots has not changed. This result is correct only if the covenant was intended to operate as a setback requirement. As that was manifestly not the purpose of the covenant, the result in the hypothetical and the majority’s resolution of this case are at odds with the rule that a covenant should be construed to accomplish its intended purpose. Lamoreux v. Langlotz, 757 P.2d 584, 587 (Alaska 1988).
The trial court should determine what the sighting point would be if Brown’s house was entirely situated on the northern one-third of her lot. Because such a point was not determined, I would remand for that purpose. In all other respects I would affirm the trial court’s decision that the covenant is enforceable.