No. 83-74
IN THE SUPREME COURT OF THE STATE OF MONTANA
1983
.MAURICE C. GOSNAY & PAP4LA C. GOSNAY,
Plaintiffs and Respondents,
BIG SHY OWNERS ASSOCIATION, AND
ROBERT J. FRITZ, et al. ,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable W. W. Lessley, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
f.lorrow,Sedivy & Olson, Bozeman, Montana
Edmund Sedivy and Terrence Schaplow argued,
Bozeman, Montana
For Respondents:
1,.4oore,
Rice, 0'Connell & Refling, Bozeman, Montana
Barry OIConnell argued, Bozeman, Montana
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Submitted: June 9, 1983
Decided: ~uly28, 1983
Filed:
JUL 2 8 1983
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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
Big Sky Owners Association and the individual members of
the Big Sky Architectural Committee appeal the October 7,
1982, judgment of the Eighteenth Judicial District Court
which allowed Maurice and Pamla Gosnay to construct a stable
and keep horses on their property and barred the
Architectural Committee from ordering removal of the fence
the Gosnays built around their property.
Sweetgrass Hills is a subdivision in the Big Sky,
Montana area and is owned by Big Sky of Montana, Inc.
Protective covenants were issued by Big Sky of Montana, Inc.,
to control the uses to which the subdivision can be put.
Covenant 1 (A)(i) of the protective covenants grants to the
Big Sky Architectural Committee the express authority to
approve, change or overrule the location of any structure on
any residential lot in the subdivision. Other protective
covenants provide guidelines to be followed by the Committee
when exercising its authority. The Gosnays purchased land by
a warranty deed which is subject to the protective covenants.
Therefore, those covenants control in this appeal. Heritage
Heights Home Owners Ass'n v. Esser (1977), 115 Ariz. 330, 565
P.2d 207.
Ma.urice and Pamla Gosnay were shown land in the
Sweetqrass Hills Subdivision by realtor David Hyde. The
Gosnays became interested in ten acres of land referred to as
Tract 11, the largest tract in the subdivision.
Gosnays expressed to Hyde an interest in constructing a
stable and boarding their horses on the land. The Gosnays
own the Karst Camp and use their Belgian Draft horses to pull
sleighs in the winter. Mr. Hyde testified that after
reviewing the prohibitive covenants with the Gosnays, he
informed them that a decision regarding the horses and stable
would be up to the Architectural Committee. Mr. Gosnay
testified that Mr. Hyde told him there would be no problems,
under the prohibitive covenants, in having horses and a
stable on that land.
The Gosna.ys purchased Tract I1 and began to plan a
jackleg fence to completely enclose their property. The
Architectural Committee refused to grant Gosnays permission
to build the fence. Construction of the fence was commenced
in November of 1981, despite lack of approval.
On November 9, 1981, Maurice and Pamla Gosnay filed a
declaratory judgment seeking to judicially establish the
authority of the Big Sky Owners Association (BSOA) to
designate Gosnays' land as an area where stables could be
constructed under the applicable prohibitive covenants. BSOA
filed a complaint in December 1981, seeking a preliminary
injunction for the removal of the fence Gosnays had begun
constructing. Gosnays then filed a third party complaint on
January 13, 1982, against the members of the Big Sky
Architectural Committee, attempting to establish the validity
of the fence construction.
The actions were consolidated and a bench trial was held
September 7 and 8, 1982, in the District Court of the
Eighteenth Judicial District. On October 8, 1982, a judgment
was entered allowing Gosnays to keep their fence and horses
and to build a stable. Gosnays were also awarded $5,000.00
in attorneys' fees on November 17, 1982. BSOA and the
Architectural Committee now appeal those judgments. We
vacate the judgment of the District Court.
Four issues are presented to this Court for our review:
1. Did the District Court err in allowing Gosnays'
jackleg fence to remain on their property?
2. Did the District Court err in allowing Gosnays to
build a stable on their property?
3. Did the District Court err in allowing horses to be
kept on the property?
4 Did the District Court err in ordering defendants to
pay Gosnays' attorneys,,
fees?
The following are the primary Prohibitive Covenants
relevant to issues one, two and three:
"NOW, THEREFORE, Big Sky does hereby establish,
dedicate, declare, publish and impose upon the
premises the following Protective Covenants which
shall run with the land and shall be binding upon
and be for the benefit and value of Big Sky and all
persons claiming under it, its grantees, successors
and assigns and shall be for the purpose of
maintaining a uniform and stable value, character,
architectural design, use and development of the
premises. These Protective Covenants shall apply
to the entire premises and to all improvements
placed or erected thereon unless otherwise
specifically excepted and shall have perpetual
existence unless terminated by law or amended as
herein provided.
1. USE
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"F. TRACTS I AND I1
"a. Tracts I and I1 shall be used for single
family residences only. No buildings or
improvements shall be placed, constructed,
reconstructed, altered or remodeled on any site
except to provide for a single family dwelling with
an attached or detached garage. Any plans for any
dwelling on either tract shall provide for
off-street parking for at least two vehicles.
"b. Tract I may be further subdivided by the owner
thereof into not more than three separate, smaller
tracts for residential use only and for the
erection of one single family residence with
attached or detached garage on each separate tract,
each such small tract to be not less than one acre
in size.
"c. Tract I1 may similarly be further subdivided
by the owner thereof into not more than four
separate, smaller tracts for residential use only
and for the erection of one single family residence
with attached or detached garage on each separate
tract, each such smaller tract to be not less than
one acre in size.
3. ARCHITECTURAL COMMITTEE
"D. No building, construction, reconstruction,
alteration, remodeling, landscaping, parking,
fence, wall or other improvement shall be placed,
constructed, erected, repaired, restored,
reconstructed, altered, remodeled, added to or
maintained on any lot or tract until building
drawings, plans and specifications (which must have
been prepared by a licensed architect for all
construction, reconstruction, alteration or
remodeling), and such other information as the
Committee may reasonably require, including without
being limited to, colors, building materials and
models, have been submitted to, and approved by, a
majority of the Committee in writing; nor may the
same be commenced until the Committee shall have
issued a permit allowing for such improvements.
I1
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8. ANIMALS
"Animals such as dogs, cats, birds or horses are
allowed in the subdivision as pets only and so long
as they do not constitute a nuisance to others.
Kennels, stables or other facilities for the
keeping or retention of animals shall be restricted
to areas so designated by the Committee. The
commercial breeding, care, raising or keeping of
any animal is forbidden. If a particular animal or
animals shall, in the discretion of the Committee,
become a nuisance, the Committee shall have the
authority to require that the same be kept tethered
or confined on the owners property and the
Committee may further require that when the said
animal or animals are taken from the said property
such animals must then be kept on a leash or bridle
and must be under the owner's control at all
times. I'
The same rules of construction apply to interpreting
these prohibitive covenants as apply to interpreting
contracts. Nakis v. Cross (1980), 246 Ga. 658, 272 ~ . ~ . 2 d
312. Therefore, we must read the covenants as a whole in
order to ascertain their meaning, rather than reading any one
covenant or part of a covenant in isolation. Rumph v. Dale
Edwards, Inc. (1979), 183 Mont. 359, 367, 600 ~ . 2 d163, 168.
Where, as here, the language of the covenants is clear and
explicit, that language will govern our interpretation of the
covenants as a whole. " [W]here the words are plain,
unambiguous, direct and certain and admit of but one meaning,
then it is the duty of this Court to declare what the terms
of the covenants contain . . . " Higdem v. Whitman (1975),
167 Mont. 201, 208, 536 P.2d 1185, 1189.
DID THE DISTRICT COURT ERR IN ALLOWING THE FENCE?
Construction of a fence requires prior approval by the
Architectural Committee - covenant 3 (D). The Committee's
discretion to approve or disapprove a fence must be governed
by the prohibitive covenants and must be reasonably
exercised. To do otherwise would be an abuse of discretion
by the Committee. Melson v. Guilfoy (Mo.App. 1980), 595
S.W.2d 404.
The Architectural Committee did not abuse its discretion
when it refused Gosnays permission to build their fence.
Gosnays' fence is contrary to Big Sky's overall plan for
"openness." No other tract or lot in the subdivision is
totally enclosed by a fence. Fences which have been allowed
by the Architectural Committee have been "border" fences for
landscaping purposes and an 8' by 10' cyclone fence around a
dog pen. These facts support the Committee's decision and
also negate the assertion that, by allowing other fences, the
Committee has waived the prohibitive covenant regarding
fences. The District Court's judgment allowing Gosnays"
jackleg fence to remain on their property is clearly
erroneous and we reverse it.
DID THE DISTRICT COURT ERR IN ALLOWING STABLES?
Construction of a stable requires that the Architectural
Committee designate the area(s) in which stables can be
built. Covenant 8. Prohibitive covenant 1 ( F ) (a) restricts
buildings on Tract I1 (Gosnays' tract) to single family
residences and garages. Therefore, the Architectural
Committee acted properly in denying permission to construct a
stable on Tract 11.
This decision is not to be construed as a complete ban
of stables from the Sweetgrass Hills Subdivision. Stables
are permitted, but may be located only in areas designated by
the Architectural Committee. In the past, those areas have
been in the subdivision's agricultural tracts. Stables are
not allowed on tracts which are limited by the covenants to
single family residences and garages.
DID THE DISTRICT COURT ERR IN ALLOWING HORSES?
The District Court found that horses, as pets, could be
kept on plaintiffs' tract. This action could only be
justified if the Architectural Committee abused its
discretion in banning the horses. See Exhibit 29, a letter
from the Committee's attorney, states:
"Certainly horses are allowed in the subdivision as
pets provided they are not a nuisance to others.
It would be very likely that if a horse was kept
year-round without proper stables it would be a
nuisance."
On appeal appellants5 brief argues valiently in support
of this nuisance determination:
"Additionally, these horses, and their ensuing,
resounding, egregious divestitures of abdominal gas
echoing through the hills and vales of this
otherwise peaceful area, closely akin to the point
blank discharge of a double-barreled shotgun, have
utterly no place in this quiet, residential hamlet
of Big Sky. 'I
While the loquacious author is guilty of hyperbole the
nuisance premise is difficult to dispute. Certainly we are
unable to say that the Committee, in finding unhoused horses
to be a nuisance, abused its discretion as a matter of law.
ATTORNEYS' FEES
Covenant 14 (D) governs attorneys' fees and provides in
relevant part:
"D. Actual costs, expenses and reasonable
attorneys' fees connected with correcting,
remedying, abating, preventing or removing any
violation or threatened violation of these
covenants incurred either through litigation, entry
or self-help shall constitute a claim by the owner
or the Committee initiating such action against the
owner of the property which is the subject of such
violation or threatened violation. Such claim
shall not, however, exceed Five Thousand Dollars
($5,000.00) for any one claim and shall be
enforcable through appropriate court action."
Pursuant to this covenant, appellants are entitled to recover
from Gosnays the attorneys' fees generated by this
litigation in an amount not to exceed $5,000.00.
This matter is reversed and remanded to the District
Court with instructions to issue to Gosnays a mandatory
injunction to remove the jackleg fence enclosing their land
and to conduct a hearing on the reasonable attorneys' fees to
be awarded appellants.
We concur:
Justice Shea specially concurring:
I join the opinion of the Court but have a few comments
on the findings and conclusions entered in this case.
In their appeal the defendants also claim that the trial
court adopted virtually verbatim if not entirely verbatim,
the proposed findings and conclusions of the plaintiff's
counsel. Plaintiff's counsel does not dispute this claim.
From time to time the trial courts have been quite critical
of the decisions of agencies and boards where the reasons for
their decisions are not set forth in the orders of the
agencies involved. It seems to me that the trial courts have
really no reason to be critical of agency decisionCwhen the
trial courts simply rubber stamp the proposed findings and
conclusions of the party that they believe should win the
lawsuit. This practice hardly bespeaks of a careful,
considered analysis of the evidence and the law.
The parties, counsel, and the public are entitled from
the trial courts to more than the duplicating of proposed
findings and conclusions presented by a partisan to the
cause. Of course I know that my view of the evils of
verbatim parroting of findings and conclusions does not hold
sway for too long in this Court, but I will continue to
adhere to this view.