(dissenting).
I would affirm and accordingly dissent. There are no facts to be decided. To return this case, for the trial court to grope in law (not in fact) searching for a sound justiciable holding, is delaying our duty. Further, it is manufacturing another appeal to this Court. This case should be decided upon the law. Questions of law are solely within the province of the court. This action was brought under SDCL ch. 21-24, Declaratory Judgment. Per SDCL 21-24-9, if the proceeding involves the determination of an issue of fact “such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.” We held, however, in Orr v. Kneip, 287 N.W.2d 480 (S.D.1979), that this section did not alter the well-established rule that questions of law are solely within the province of the court. And that is exactly what is before us at this time: A question of law and not an issue of fact.
1.
Neither motion for summary judgment appears to have raised the equitable issue defendants/appellants are now advocating.
2.
Defendants/appellants made no showing of any facts whatsoever to support their theory that an equitable servitude should attach as a matter of law. Plaintiff/appel-lee provided an affidavit to the court, requested the court to review the pleadings, and prayed that the court take judicial notice of a court record in Brown County concerning the trust created by the Last Will and Testament of Pauline Klabo, deceased. No depositions, affidavits, or interrogatories were tendered or filed in resistance to plaintiff’s/appellee’s showing.
SDCL 15-6-56(e) requires that the party opposing a motion for summary judgment be diligent in resisting the motion. “[M]ere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.” Hughes-Johnson Co. v. Dakota Midland Hospital, 86 S.D. 361, 195 N.W.2d 519, 521 (1972).
Lee v. Beauchene, 337 N.W.2d 827, 829 (S.D.1983). See also, Peterson v. Rogers, 347 N.W.2d 580, 581 (S.D.1984). Thus, the equitable cupboard is bare. Bare in pleading and bare in showing.
3.
Defendants/appellants did not assert the equitable servitude affirmative defense by pleading it with identifiable specificity; rather, they alleged the complaint of plaintiff s/appellee’s was “barred by the defenses of estoppel, laches, and waiver.” Not having raised the equitable servitude defense below, not having preserved their record on factual issues, defendants/appellants cannot raise it on appeal. Weaver v. Boortz, 301 N.W.2d 673 (S.D.1981).
4.
Free and untrammeled use of land is favored by the law and restrictive covenants are to be strictly construed. Accord: Luedke v. Carlson, 73 S.D. 240, 41 N.W.2d 552 (1950). Cf., Piechowski v. Case, 255 *190N.W.2d 72 (S.D.1977). Strict construction of restrictive covenants is also favored by the law. See Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn.1981).1
5.
Restrictive covenants in a contract for deed which specify “shall constitute covenants running with the land,” runs afoul, in this factual scenario, of legislative intent. The trial court’s determination was correct. For support, I draw upon two state statutes: SDCL 43-12-1 and SDCL 43-12-2.
SDCL 43-12-1. Covenants running with land defined. Certain covenants contained in grants of estates in real property are appurtenant to such estates and pass with them so as to bind the assigns of the covenantor, and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land.
SDCL 43-12-2. Classification of covenants running with land. The only covenants which run with the land are:
(1) Those made for the direct benefit of the property or some part of it, then in existence;[2]
(2) Covenants of warranty for quiet enjoyment or for further assurance, on the part of the grantor;
(3) Covenants for the payment of rent or of taxes or assessments upon the land, on the part of a grantee; and
(4) All covenants incidental to any of the foregoing covenants.
Real property has devolved upon it — inherent rights, if you will, which buyers and sellers cannot vitiate.
The restrictive covenants herein were personal in nature as they were made for the personal benefit of defendants/appellants. This is prohibited. See 20 Am.Jur.2d Covenants, Conditions, Etc. § 35 (1965). A covenant which imposes a burden on real property for the benefit of the grantor personally does not follow the land unto the possession of an assignee, for such a covenant is personal to the grantor and does not run with the land even though the deed or the document may expressly state that the covenant runs with the property. Id.
In this case, the trial court held that the restrictions of the contract did not benefit the subject property or any adjacent property. Thus, the trial court held that the restrictions did not qualify as “covenants running with the land” pursuant to SDCL 43-12-2(1). Furthermore, the trial court held that an equitable servitude could not exist without an agreement between the parties that the restrictions were part of a general plan whereby several parcels of land were subject to, and benefited by, the same restrictions. This — the trial court ostensibly held, even though the precise issue was not presented by defendants/appellants. Lest there be any misunderstanding as to the trial court’s holding in granting the summary motion, as a matter of law, for plaintiff/appellee, the trial court held:
1. The restrictions of the contract for deed were personal promises of the buyer and thus bound plaintiff/appel-lee.
2. That should plaintiff/appellee ever assign the contract for deed, the as-signee would be bound to the restrictions in the same manner as the plaintiff/ appellee.
3. If the plaintiff/appellee completed his performance of the contract for deed and then conveyed the subject premises, the subsequent purchaser was not bound by the restriction.
Defendants/appellants agreed with this holding with respect to the premise that the restriction constituted a personal promise binding plaintiff/appellee and any indi*191vidual to whom plaintiff/appellee could conceivably assign the contract for deed. It is the third determination, as set forth above, to which defendants/appellants take academic exception.
6.
Defendants’/appellants’ case hinges on this proposition: A court of equity should place an equitable servitude against the property which would restrict the use of the subject property by a “subsequent grantee with notice.” Crucial, however, to our decision is the fact that the record reveals that there is no “subsequent grantee with notice.” Where is the subsequent grantee here? He, she, it does not exist; it is a phantom.
7.
This brings me to the last point of my dissent, namely, the majority opinion’s dissertation on the propriety of declaratory relief when applied to the facts at hand. There are no persons, as we review SDCL 21-24-7, who must be parties who have claimed any interest affected by the declaration of the trial court; nor, for that matter, who actually have any interest which would be affected by the trial court’s declaration. Therefore, no declaration was entered by the trial court which has prejudiced the rights of persons who are not party to this proceeding. This Court is not supposed to render opinions which are theoretical in nature. We are supposed to review justiciable issues involving real parties. There is not now a subsequent grantee of any interest in the property; defendants/sellers reflected in their answer that “[plaintiff/appellee] has not tendered the balance of the purchase price for said premises and is not entitled to fee ownership thereof at this time.” Are we not, therefore, in a factually vacuous state? The trial court properly ruled, as a matter of law, under the statutes of this state, as I have set forth in detail above, and I would sustain the ruling. Summary judgment was entered, based upon an issue of law, not an issue of fact, and this Court should not permit a trial court below to wax into law on theoretical questions. Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93 (1974); State of North Dakota v. Perkins County, 69 S.D. 270, 9 N.W.2d 500 (1943); Security State Bank v. Breen, 65 S.D. 640, 277 N.W. 497 (1938).
I am hereby authorized to state that Justice MORGAN joins in this dissent.
. This is not to say that this state does not recognize restrictive covenants. See Vaughn v. Eggleston, 334 N.W.2d 870 (S.D.1983). However, in the context of that case, we were not discussing equitable servitudes and the covenants did not run afoul of SDCL 43-12-2. The restrictive covenants in Vaughn were not personal in nature, such as here, and did directly benefit the property.
. This is the pertinent subsection to the legal inquiry before us.