Turner v. Caplan

Present: All the Justices

ROBERT E. TURNER, III

v. Record No. 031950 OPINION BY JUSTICE DONALD W. LEMONS
June 10, 2004
MICHAEL A. CAPLAN, ET AL.

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge

In this appeal, we consider the proper construction of

certain restrictive covenants and exceptions thereto. Also,

we consider whether the pasturing of a horse on certain lots

within the subdivision in question constitutes a nuisance.

I. Facts and Proceedings

In 1975, Robert E. Turner, III ("Turner") acquired a

101.4 acre tract of land in Pittsylvania County, Virginia, and

thereafter established a subdivision known as Windermere.

This dispute concerns the use of Lots 4B, 5, 6, and 7 in

Section D of the subdivision which will be referred to herein

as the "pasture."

In 1979, Turner recorded a declaration of protective

covenants, restrictions, and conditions (the "Agreement") of

which relevant portions provide:

1. All of the lots above described shall
be used exclusively for residential
purposes.

. . . .

3. Only one single family dwelling may be
erected on any lot, but in addition
thereto, there may be erected a car garage

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 and other structures incidental to the use
of such property for residential purposes.

. . . .

5. No nuisance shall be maintained or
permitted on any of said lots.

6. There shall be no raising or harboring
of pigs, goats, sheep, cows, or any other
livestock or poultry on said lots, with the
exception of a usual domestic pet. This
restriction shall not be applicable to Lots
Nos. 1-7, inclusive, Section D.

Covenant 10 further specifies that should a court invalidate

any one of the Agreement's covenants, all others remain in

full force and effect.

Turner sold most of Windermere's lots; however, he

retained ownership of the pasture. Michael and Carol Caplan

("the Caplans") and Grady and Martha Carrigan ("the

Carrigans") reside on lots adjoining the pasture.

At some time in the early 1980's, Turner kept a horse on

the pasture for approximately six months. Again, in the late

1990's a horse was periodically kept on the pasture. Finally,

since 2002 a horse has been kept periodically on the pasture

depending upon the time of year and the weather.

In 2002, the Caplans filed a bill of complaint for

injunctive relief with the Circuit Court of Pittsylvania

County asking the court to permanently enjoin Turner from

placing a horse on the pasture. Thereafter, the trial court

granted the Carrigans' motion to intervene in the lawsuit.

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 The trial court held that the maintenance of a horse on

the pasture violated the Agreement because it was inconsistent

with the intent to create a residential subdivision and

because the trial court held that keeping a horse at that

location constituted a nuisance. The trial court entered a

permanent injunction forbidding Turner from keeping a horse on

the pasture. Turner appeals the adverse judgment of the trial

court and alleges that the trial court erred in its judgment

that maintaining a horse on the pasture was inconsistent with

the intent of the Agreement, that the specific exception from

the ban upon livestock for the pasture was unreasonable, and

that keeping a horse on the pasture was a nuisance.

II. Standard of Review

The trial court's order presents findings of fact and

law. We will not disturb its factual findings unless they are

plainly wrong. The trial court's interpretation of the

restrictive covenants is, however, a question of law, and we

review those conclusions de novo. See Wilson v. Holyfield,

227 Va. 184, 187, 313 S.E.2d 396, 398 (1984).

III. Analysis

The trial court found that Turner intended to create an

exclusively residential neighborhood when he formed the

Windermere subdivision. The trial court further concluded

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that placing livestock on any of Windermere's lots is

inconsistent with this intent.

Covenant 1 of the Agreement is clear and unambiguous in

restricting Windermere's lots exclusively for residential

purposes;* however, Covenant 1 is subject to an equally clear

and unambiguous exception in Covenant 6. Covenant 1 states

that all of the lots "shall be used exclusively for

residential purposes." Covenant 6 prohibits raising or

harboring of livestock or poultry on the lots but further

states that, "[t]his Restriction shall not be applicable to

Lots Nos. 1 - 7, inclusive, Section D," which includes the

pasture. We must construe the Agreement as a whole and, if

possible, interpret its provisions consistently with one

another. First American Title Ins. Co. v. Seaboard Sav. &

Loan Ass'n, 227 Va. 379, 386, 315 S.E.2d 842, 846 (1984); Tate

v. Tate, 75 Va. 522, 527 (1881). In First American Title, we

said:

it is the duty of the court to construe the
[Agreement] as a whole, and in the
performance of this duty it will not treat
as meaningless any word thereof, if any
meaning, reasonably consistent with other
parts of the [Agreement], can be given.

Id. at 386, 315 S.E.2d at 846 (quoting Pilot Life Ins. Co. v.

Crosswhite, 206 Va. 558, 561, 145 S.E.2d 143, 146 (1965)).

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 Adhering to this principle, we hold that Covenant 1's

residential purpose, when read in context with Covenant 6,

does not exclude raising or harboring livestock or poultry.

Such activity is prohibited under Covenant 6 for all lots

except Lots 1 through 7 of Section D, which includes the lots

comprising the pasture. Turner's reservation of this right is

clearly expressed.

Further, Turner states that the trial court erred in

holding that exempting the pasture from the covenant

forbidding raising or harboring livestock or poultry is

unreasonable. While we are aware of case law holding that use

of property may not be unreasonably restricted, see Hercules

Powder Co. v. Continental Can Co., 196 Va. 935, 939, 86 S.E.2d

128, 131 (1955), counsel and the trial court cite no cases

applying the concept of "unreasonability" to the exemptions

specifically allowing the use of restricted land for

particular purposes.

In holding the exemption unreasonable, the trial court

apparently relied on the fact that Turner, as the original

grantor/owner, is the only Windermere landowner exempted from

Covenant 6's restriction. This assumption is incorrect

because the exception to restrictions in Covenant 6 applies to

*
Covenant 3 further suggests residential purposes by
restricting construction to "one single family dwelling . . .
and other structures incidental to residential purposes."

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Lots 1 through 7 of Section D. The Carrigans, who are

appellees herein, own Lots 1 and 2B.

Additionally, the property owners knew at the time they

purchased the lots, and assented to Windermere's covenants,

that Lots 1 through 7 had been exempted from the livestock

restriction. Presumably, they considered the restriction and

its exemptions reasonable or they would not have purchased

their lots. On this record, we hold that the trial court

plainly erred in concluding that the exemption here was void

for unreasonableness.

Finally, Turner asserts that the trial court erred in

holding that "to allow the placement of livestock on lots in

the subdivision would also create a nuisance in violation of

Restriction No. 5." Of course, the law of nuisance exists

independently of restrictive covenants. The fact that a

prohibition upon maintaining a nuisance is found in a covenant

adds nothing to analysis of whether the facts presented

constitute a nuisance.

The case of Bragg v. Ives, 149 Va. 482, 140 S.E. 656

(1927), involved the proposed intrusion of a funeral home into

a residential neighborhood. In the course of determining

whether the trial court erred by dismissing the bill for

injunctive relief upon demurrer, we considered what is

necessary to sustain a cause of action for nuisance. Quoting

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decisions from other jurisdictions and secondary authorities

with approval, we stated:

"In all such cases the question is whether
the nuisance complained of will or does produce
such a condition of things as, in the judgment of
reasonable [persons], is naturally productive of
actual physical discomfort to persons of ordinary
sensibilities and of ordinary tastes and habits,
and as, in view of the circumstances of the case,
is [un]reasonable and in derogation of the rights
of the complainant."

. . . .

"The decisions establish that the term nuisance, in
legal parlance, extends to everything that endangers life
or health, gives offense to the senses, violates the laws
of decency, or obstructs the reasonable and comfortable
use of property."

Id. at 496-497, 140 S.E. at 660 (citations omitted). See also

Martin v. Moore, 263 Va. 640, 648, 561 S.E.2d 672, 677 (2002);

Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661,

667 (1992).

Although the trial court does not expressly use the term

"nuisance per se," the language of its order embraces the

concept. As we have previously noted, "while there is some

confusion in the books as to the meaning of the term nuisance

per se, the tendency of modern times is to restrict its use to

such things as are nuisances at all times and under all

circumstances." Price v. Travis, 149 Va. 536, 547, 140 S.E.

644, 647 (1927).

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 The trial court's order is too broad and improperly

expresses its judgment in terms that can only be interpreted

as a holding of nuisance per se. First, the order refers to

"livestock" when the pasturing of a horse is the issue.

Second, the order refers to "lots in the subdivision" when the

only lots in question constitute the "pasture." Finally, the

trial court erred in its entry of a judgment that effectively

holds that the mere "placement" of livestock, including a

horse, on the lots at issue constitutes a nuisance at all

times and under all circumstances.

IV. Conclusion

We hold that the trial court erred in its interpretation

of the legal effect of the covenants in the agreement.

Further, we hold that the trial court erred in its entry of a

judgment that is too broad in its application and, in effect,

holds that the mere placement of a horse on the pasture

constitutes a nuisance per se. We will reverse the judgment

of the trial court and enter final judgment for Turner.

Reversed and final judgment.

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