No. 85-382
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
1. G. HAGGERTY, a/k/a THOMAS G. HAGGERTY,
'
R. G. SIMKINS, a/k/a ROEERT G. SIMKINS,
and BRIDGER VILLAGE DEVELOPMENT CORP.,
Plaintiffs and Appellants,
GALLATLN COUNTY; JOY NASH, RUTH MARY
TONN, and WILBUR VISSER, as County
Comrnissi.oners; BRIDGER BOWL, INC.,
et al. ,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Robert Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Morrow, Sedivy & Bennett; Edmund P. Sedivy, Jr. argued,
Bozeman, Montana
For Respondents :
A. Michael Salvagni, County Attorney, Bozeman, Montana
Thomas R. Anacker argued, Deptuty County Attorney
Moore, Rice, 0 Connell- & Refling; Christopher Manos
'
argued for 1st Bank & 1st Trust, Bozeman, Montana
Gregory 0 Morgan argued for Bridger B o w l , Bozeman,
.
P4ontana
-- - - - -
Submitted: March 2 6 , 1 9 8 6
Decided: April 18, 1 9 8 6
APR 13 "1886
Filed:
n
2g-u ,*,
Clerk
Vr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Appellants brought this action in the Cistrict Court
seeking an injunction to prevent respondent Bridger Rowl,
Inc., from serving beer and wine. In the alternative, appel-
lants sought a rescission of the contract for transfer of
lands from appellants to Bridger Bowl. ,
Appel-lants Simkins
and Haggerty, along with their wives, organized appellant,
Bridger Village Development Corporation to handle their
interest in lands located in the vicinity of the Bridqer Bowl
ski area. Respondents GalLatin County, First Trust Company
of Montana and First Bank of Bozeman are parties because of
mortgage and lease-back agreements entered into by Bridger
Bowl with these parties to finance improvements on the prop-
erty. After trial, the District Court entered findings of
fact and conclusions of law and judgment denying any relief
to appellants and awarding attorney fees to respondents.
Appellants appeal this judgment.
We considered the following issues on appeal:
1. Whether the District Court erred in concluding
there is no binding agreement prohibittinq Bridger Rowl from
conducting commercial activities in the Base Area Chalet.
2. Whether the District Court erred in concluding that
the terms of the June 11, 1971, agreement merged into the
deeds of December 15, 1972.
3. Whether the District Court erred in concluding that
the commercial use limitation on Bridger Bowl lands was void
as an unlawful restraint on trade.
4. Whether the District Court erred in concluding that
the conduct of commercial activities by Bridger Bowl on lands
other than the parking lot is not a violation of the commer-
cial. use limitation in the deed to the parking lot lands.
5. Whether the District Court erred in awarding re-
spondents attorney fees.
Appellant has raised two other issues concerning wheth-
er the sale of beer and wine vj-olates the commercial. use
restrj-ction and whether the county, bank and trust company
had notice of the restriction. Our holdings on the other
issues makes consideration of these issues unnecessary.
We affirm the District Court's denial of relief to
appellant. However, we reverse the court's holding which
voided the commercial use restrj-ction as an unlawful re-
straint on trade. We also reverse the award of attorney fees
to respondents.
The parties have been fighting over their respective
rights Ln property near the Rridger Bowl Ski Area for over
fifteen years. The record of the parties' previous litiga-
tion provides a useful introduction to the current dispute.
The District Court.'s opinion in Bridger Bowl v. Simkins
and Haggerty, No. 19930, Ga.llatin County, provides an expla-
nation of the original intentions of the parties. Most valu-
able are items 1 & 2 in the District Court's order dated
September 28, 1972, amending its findings of fact and conclu-
sions of law in that case. Those items are a.s follows:
1. In view of the evidence at trial to
the effect that Simkins and Haggerty at
the time of purchasing the land in
question intended to provide land for
daytime skiing and uphill transportation
needs of Bridger Bowl, but to retain the
rest of said Neuffer lands for future
development and investment and profit to
themselves by furnishing overnight
sccommodations to skiers; and, in keep-
ing with these purposes Simkins and
Haggerty have sold and conveyed to
Rridger Bowl approximately fifty (50)
acres of ski terrain and fifteen (15)
acres of parking at their cost of
$200.00 per acre, and Bridger Bowl
relying on defendants' assurances to
provide lands sufficient to accommodate
the needs of daytime skiers and uphill
transportation, moved the facilities on
to defend.antstlands, and
2. By virtue of the great expansion of
Bridger Bowl which has created problems
for Bridger Bowl in parking and sewage
disposal which had not been anticipated
or adequately provided for, but which is
within the power of Simkins and Haggerty
to assist in resolving consistent with
their original intention of benefiting
Bridger Bowl and themselves;
Thus, the District Court in that earlier case envisioned a
symbiotic rather than competitive relationship between appel-
lants and. Bridger Bowl whereby Bridger Bowl accommodated the
daytime needs of skiers thereby drawing customers to the area
and thus providing business for overnight accommodations
developed or invested in by appellants. Unfortunately, this
spirit cooperation amoncj the parties has not prevailed,
and we are faced with the current litigation.
There were a number of transactions, deeds, escrows and
conveyances among the parties leading to this litigation.
The following highlights only those details important to the
outcome this case, but the scenario remains complicated.
Bridger Bowl, Inc., is a nonprofit corporation organ-
ized for operating and maintaining the Bridger Bowl Ski Area
near Bozeman, Montana. The corporation primarily provides
uphill transportation to skiers, but it also operates chalets
a-t the base of the area. and in Deer Park on the mountain as
daytime facilities for the comfort and convenience of the
skiers. Both appellants, Haggerty and Simkins, served as
clirectors of Bridger Bowl through fiscal year 1371-1972,
Ba.ggerty starting in 1955 and Simkins in 1961.
Zohn and Cynthia Neuffer conveyed the tract of land
upon which the Deer Park Chalet was subsequently built to
Bridger Bowl's predecessor on July 20, 1961, by warranty
deed. No reservations or restrictions are on the deed. Then
on September 7, 1966, appellants acquired 170 acres of land
located just east and at the bottom of the then existing ski
area by warranty deed from the Neuffers.
Soon after appellants' purchase of the Neuffer land,
Rridger Bowl developed plans to expand downhill by building a
new chair lift and chalet further down the hill and on the
land that appellants had purchased. Appellants accommodated
these plans by granting respondents a permanent easement over
portions of the 170 acres for the new lift, ski runs and a
parking lot. In addition, on July 20, 1967, appellants
deeded one acre of their land to Bridger Bowl without charge.
The Base Area Chalet and Alpine lift terminal are now located
o , this parcel.
r The deed to this Base Area Chalet parcel
contains no restrictions or reservations, but appellants
allege that the deed was subject to an oral agreement that
Bridger Bowl would not use the acre for commercial activity.
The District Court, however, did not allow testimony on this
oral agreement.
In 1969, appellants constructed a building on some of
their Land adjacent to the Base Area Chalet parcel. The
building was known as the St. Renard and contained a restau-
rant, lounge and bar. Later they built a ski shop and deli
also on the land adjacent to the Base Area Chalet. Beer and
wine are served in the deli. It is undisputed that appel-
lants are interested in limiting competition to these facili-
ties and their future developments in the area.
The land that appellants purchased from Neuffers became
the subject of a title dispute and two lawsuits between
appel-lants and Bridger Bowl in 1971-72. Appellants charged
Bridger Bowl with slander of title and Bridger Bowl charged
appellants with breach of fiduciary duty. This Court's
opinion in Simkins v. Jaffe (1974), 165 Mont. 266, 527 P.2d
1195, summarizes the course of the dispute and the litiga-
tion. As a result of the dispute and on-going negotiation,
appellants entered into an agreement on June 11, 1971, with
Bridger Bowl whereby appellants would convey to Bridger Bowl
sixty-five acres of the disputed land at the price they had
purchased it for. This agreement was subsequently modified
by an addendum to include five additional acres for the
parking lot area. This addendum was in response to the
judge's order in Bridger Bowl's action against appellants.
The agreement, addendum and deeds were prepared by appel-
lants' attorneys in consultation with Bridger Bowl's and
deposited in escrow. The deeds were subsequently recorded.
Neither the June 11, 1971, agreement nor its addendum have
been recorded.
Discrepancies between the agreements and deeds with
respect to a commercial use restriction are at the basis of
this current litigation. We will now outline those
discepancies.
The Zune 11, 1971, agreement purports to facilitate the
conveyance of two parcels of land, Parcel A and Parcel R from
appellants to Bridger Bowl. Parcel A includes skiing lands
near the base of the ski area described in the agreement as
follows:
All of the sellers' land situate in the
Southeast Quarter of t.he Southwest
Quarter and the Southwest. Quarter of the
S o u t h e a s t Q u a r t e r o f S e c t i o n 1 9 , Town-
s h i p 1 N o r t h , Range 7 E a s t , M . P . M . ,
which a r e s u b j e c t t o a s k i easement a s
d e s c r i b e d i n Easement N o . 3 of the
easement r e c o r d e d i n Book 2 4 o f Miscel-
l a n e o u s a t Page 108 i n t h e o f f i c e o f t h e
County C l e r k and Recorder o f G a l l a t i n
County, Montana, and a s more p a r t i c u l a r -
l y d e s c r i b e d i n E x h i b i t "A" h e r e u n t o
a t t a c h e d and by t h i s r e f e r e n c e i n c o r p o -
rated herein.
E x h i b i t "A" t o t h e a.greement t h e n f u r t h e r d e s c r i b e s t h e l a n d :
SE%SW& and SW&SE%o f S e c t i o n 1 9 , Town-
s h i p 1 N o r t h , Range 7 E a s t , M.P.M.,
Gallatin County, Montana, SAVE and
EXCEPT t h e s i x ( 6 ) t r a c t s d e s c r i b e d a s
follows: [Exhj-hit t h e n d e s c r i b e s t h e
six tracts. ] And s u b j e c t t o easements
a s follows: [Exhibit A then l i s t s t h e
easements.]
T h i s d e s c r i p t i o n o f P a r c e l A i s i n t e r p r e t e d by a p p e l -
l a n t s a s i n c l u d i n g t h e a c r e upon which t h e Base Area C h a l e t
i s l o c a t e d b e c a u s e t h a t a c r e i s i n t h e S % o f S e c t i o n 19 and
W
i s n o t w i t h i n any o f t h e s i x excepted. t r a c t s l i s t e d i n Exhib-
it A. However, t h e Base Area C h a l e t a c r e was n o t " s e l l e r s 1"
l a n d a t t h e t i m e o f t h e J u n e 11, 1971, agreement n o r was i t
e v e r s u b j e c t t o a s k i easement a s t h e d e s c r i p t i o n r e q u i r e s .
P a r c e l B i n t h e June 11, 1976, agreement c o n s i s t s o f
f i f t e e n a c r e s of parking lot land a t t h e base o f the ski
area.
The agreement also sets o u t the fol-lowing p e r t i n e n t
miscel.laneous p r o v i s i o n s :
D. That no commercial u s e s h a l l b e made
n o r any b u i l d i n g e r e c t e d on any o f t h e
l a n d s h e r e i n d e s c r i b e d , e x c e p t day s k i
lodges, ski patrol, s k i s c h o o l and
a n c i l l a r y b u i l d i n g s used i n c o n n e c t i o n
w i t h t h e operatiol-! o f u p h i l l s k i l i f t s
and motor v e h i c l e p a r k i n g f a c i l i t i e s .
E. I n t h e e v e n t o f zoning o f t h e l a n d s
h e r e i n described, t h e buyer agrees t o
assign a l l density r a t i n g s t o t h e lands
herein described t o the s e l l e r s f o r use
on t h e i r a d . j a c e n t l a n d s .
By provision D, then, all of the lands described in the
agreement are subject to the commercial use restriction, and
appellants' interpretation of the June 11, 1971, agreement
would also subject the Base Area Chalet to the restriction.
Separate deeds conveyed Parcels A and R . The land
6escription with the deed for Parcel A varies from that in
the 1971 agreement in that the deed only utilizes Exhibit A
to the agreement as the description. Therefore, the "sell-
ers' land" and "subject to ski easement" language that ap-
pears in the agreement is missing in the deed, and the
description includes the land where the Base Area Chalet is
located. However, the deed for Parcel A also differs from the
agreeme~t because the deed does not mention any commercial
use restriction, although it does reserve population density
rights. The land description in the d-eed to Parcel A lists
all of the easements that appear in Exhibit A to the
agreement.
The deed conveying Parcel I contains a commercial use
3
restriction that varies from the one in the June 11, 1971,
agreement. The restriction in the deed is as follows: "The
use of above described land is restricted to noncommercial,
ski related, service activities." Parcel B's deed also
reserves population density rights for appellants. The
description of Parcel B in the deed only differs from the
June 11, 1 9 7 1 , agreement by adding five acres as provided for
in the addendum.
Testimony by appellants' attorney as to why the deed to
Parcel A contained no commercial use restriction was not
allowed at trial. However, the minutes of a meeting by the
directors of Bridger Bowl dated December 12, 1972, were
admitted as evidence. These minutes were utilized by the
District Court to establish that Bridger Bowl agreed to the
commercial use restriction in the deed to the parking lot
lands but not in the deed to the skiing lands.
Bridger Bowl has made a couple of transactions to
finance improvements at the ski area. On October 10, 1967,
Bridger Bowl executed and delivered to First Rank Bozeman a
mortgage on the Deer Park Chalet and Base Area Chalet proper-
ties in order to secure a $300,000 loan from the bank. On
March 1, 1979, Bridger Bowl deeded all of its lands, includ-
ing the lands involved in the present action, to Gallatin
County in order to facilitate the issuance of industrial
revenue bonds. As part of the procedure for issuance of the
bonds, Gallatin County then leased the property back to
Bridger Bowl.
Bridger Bowl has always served food in its two chalets.
During the 1982-83 ski season, Bridger Bowl began serving
beer and wine in the chalets. Appellants brought this action
alleging that the sale of beer and wine breached the commer-
cial use restriction in both the unrecorded 1971 agreement
and in the recorded deed to t i parking lot parcel.
le After
trial, the District Court denied appellants relief on the
bases that the terms of the 1971 agreement had merged in the
deeds, and, in any event, the commercial use restrj.ctions
were void as illegal restraints on trade. This appeal-
ensued.
Rppella.ntsclaim the District Court erred in con.cluding
there is no binding oral agreement by which Bridger Bowl is
prohibited from conducting commercial activities in the Rase
Area Chalet. Appellants' primary argument is that the 1971
written agreement of June 11, 1971, subjected the Base Area
Chalet to a "negative easement" which restricted use of the
property to noncommercial activities. In the alternative,
they argue that the 1971 agreement is ambiguous, and there-
fore the District Court should have allowed evidence of the
alleged oral agreement for interpreting the written agree-
ment. Finally, appellants have woven in an argument that the
1971 written agreement satisfies the statute of frauds for
the oral agreement so that the evidence of the oral agreement
is admissible. We can not agree with these arguments.
The 1971 written agreement does not create a negative
easement on the Rase Area Chalet because the agreement does
not concern the chalet property. The 19?1 agreement only
contracts to convey property described in the written agree-
ment as "sellers' l a n d l Y h a t had been "subject to a ski
easement." However, the chalet property was conveyed away hy
appellants to Bridger Bowl- in 1967 and had never been subject
to the ski easement that was also created for Fridger Bowl in
1967. Since the chalet property did not belong to appellants
and was not subject to the easement in 1971, the 1971 agree-
ment had no effect on the Base Area Chalet property. For the
same reason, the 1971 agreement cannot satisfy the statute of
frauds for any alleged oral agreement that would create a
negative easement on the Base Area Chalet land.
The 1971 agreement is not ambiguous with respect to the
land it affects. Therefore, the par01 evidence rule prevents
admission of evidence of an oral aqreement to show intent of
the parties as to what land was involved. See S 28-2-905,
MCA; See also Larson v. Rurnett (1972), 158 Mont. 421, 427,
492 P.2d 922, 925. We conclude that the 1971 agreement does
not operate to place a negative easement on the Base Area.
Chalet property.
The next issue we considered was whether the terms of
the June 11, 1971 agreement had merged illto the deeds of
December 15, 1972. Appellants point out that there is no
express language in the recorded deeds that the parties
intended to merge t-he restrictive provisions of the 1971
agreement into the deeds. Appellants then argue that the
commercial use restrictions in the 1971 agreement still
apply, regawdless of being left out of the deeds. The argu-
ment, however, does not benefit appellants because the 1971
agreement does not concern the Base Area Chalet property. We
will consider the merger issue, however, so that the parties
are fully appraised of their rights in this property that
they have feuded over for years.
The applicable rule is that a valid written contract
merges all prior and contemporaneous negotia.tions on the
subject, but distinct agreements may not be merged; whether
or not there has been a merger depends on the intention of
the parties. Story v. Montforton (1941), 112 Mont. 24, 31,
113 P.2d 507, 508. We applied this principle in Thisted v.
Country Club Tower Corp. (19651, 146 Mont. 87, 405 P.2d 432,
to determine that restrictive covenants contained in an
unrecorded contract but not in the subsequent recorded deed.
were, nevertheless, enforceable. We utilized extrinsic
evidence to reach that conclusion and emphasized the follow-
ing rule, in the opinion:
The evidence of that intention may exist
in or out of the deed. There is no
presumption that a party, in giving or
accepting a deed, intends to give up the
covenants of which the deed is not a
performance or satisfaction.
Ln the case at bar, there is substantial evidence to
support the District Court's conclusion of merger of the
contract in the deed.s. First of all, the record reflects
on-going negotiations between the parties that altered the
substance of the 1971 agreement. These negotiations culmi-
nated in two deeds--one for the skiing lands and the other
for the parking lot lands. The deed to the parking lot lands
contains both the commercial use restriction and the density
rights reservation from the 1971 agreement. The deed to the
skiing lands left out the commercial use restriction, but
left in the reservation of density rights and listed all the
other easements referred to in the 1971 agreement. Thus, all
of the restricti-ons referred to in the 1971 agreement are
included in the deeds; only the commercial use restriction on
the skiing lands is omitted. These facts, when coupled with
the minutes of Bridger Bowl's December 12, 1972, meeting
showing the intention of Bridger Bowl to remove the comrner-
cia1 use restriction from the skiing lands, provide strong
evidence that the deeds contain all of the restrictions on
the lands that were intended by the parties, and tha.t the
contract had merged in the deeds. Fr will not reverse a
ie
conclusion by the District Court that is supported by sub-
stantial evidence. Lasey v. Herndon (Mont. 1983) , 668 P. 2d
251, 40 St.Rep. 1375.
On a related matter, the excluded testimony that appel-
lants contend should. have been admitted in order to establish
intent would have only provided evidence of unilateral mis-
take. Unilateral mistake is not sufficient grounds for
reforming a written contract. See S 28-2-1611, MCA. There-
fore, any error in excluding the testimony was harmless.
The end result of merging the agreement and deed.s is
that only the twenty acre parking lot parcel is subject to
the commercial use restriction.
Appellants next allegation of error concerns the Dis--
trict Court's conclusion that the commercial use limitation
on Bridger Bowl land was void as an unlawful restraint on
trade. On this point, we agree with appellants. We note,
however, that in light of our holding on the previous issues,
the restriction applies only to the parking lot land. The
outcome of the instant case, therefore, remains the sa.me. We
will consider the issue because of its statewide importance
and the liklihood of its recurrence.
The applicable statute is S 28-2-703, MCA. It
provides :
Any contract by which anyone is re-
strained from exercising a lawful pro-
~ession,trade, or business of any kind
-c
. .. is to that extent void.
We have interpreted this statute under facts similar to
the instant case in O'Neil v. Ferraro (1979), 182 Mont. 214,
596 P.2d 197. A restaurant operator's lease forbade the
landlord and owner of the building to permit a competing
restaurant from operating in the building. We held that the
lease provision was enforceable despite its restraint on
trade because, (1) it was partial or restricted in its opera-
tion with regard to time and place; (2) it was based upon
good consideration; and (3) it was reasonable because it
afforded a fair protection to the interest of the party in
whose favor it was made, and was 1 0 so large in its opera-
it
tion so as to interfere with the interest of the public. In
a.pplying this test to the commercial use restriction alleged
by appellants, we find that the conditions o f the test are
met. The restriction is limited to lands conveyed from
appellants to Bridger Bowl a.nd the consideration is that
Bridger Bowl was a-ble to acquire the property. Appellants
have a reasonable interest in preventing competition to their
activities by acti-vities on properties they once owned. The
public is not adversely affected to a significamt degree,
because the services that are denied. to them on the restrict-
ed lands are available or can be made available on other
lands in the same locale.
There is additional authority and precedent for not
voiding the commercial use restriction. Monta.na statutes
allow for the creation of covenants and easements governing
the right to transact business on land. Section
70-17-101(6), MCA. Montana recognizes negative easements.
Northwestern Improvement Co. v. Lowry (1937), 104 Mont. 289,
66 P . 2 d 792. A properly created negative easement can he
utilized to restrain the right to do business on a piece of
property and such easements are not automatically void under
B 28-2-703, MCA. Reichert v. Weed.en (Mont. 1980), 618 P.2d
1216, 1220, 37 St.Fep. 1788, 1792. We therefore reverse the
District Court on its holding tha.t. the commercial use re-
striction is void.
Respondents also cite S 30-14-205, MCA, as applicable.
We disagree. That statute deals with antitrust and monopo-
lies. Bridger Bowl is not a monopoly merely because it is
.
the only ski area in Bridger Canyon.
IV
We have determined that there is a commercial use
restriction on the parking lot. Appellants argue that the
restriction acts to prohibit use of the parking lot by cus-
tomers who buy beer and wine on other Bridger Bowl lands. We
do not believe the restriction acts so broadly.
Appellants cite several cases from other jurisdictions
wherein the courts have prohibited the use of property as a
parking lot for a business on other property because such use
violated a commercial use restriction in the deed to the
parking lot property. See, e.g., Bennet v. Consolidated
Realty Co. (Ky. 1928), 11 S.W.2d 910; Emhry-Bosse Funeral
Home, Inc. v. Wehster (Ky. 1953), 261 S.W.2d 682; Rorsvold v.
United Daries (Mich. 1957), 81 N.W.2d 378; and H.E. Butt
Grocery Co. v. Justice (Tex. Civ. App. 1972), 484 S.W.2d 628.
These cases are distinguishable because they involve parking
lots that were being utilized primarily by commercial busi-
ness patrons. In this case, the primary purpose of the
parking lot is to provide parking for skiers using the ski
hill, and the land was conveyed to respondents for that
purpose. We will not construe the fact that skiers using the
lot might incidentally buy beer or wine at the ski area
chalets as violating the commercial use restriction on the
parking lot.
V
The fina.1 issue we considered concerns the District
Court's award of statutorily entitled attorney fees to re-
spondents. We find that there are no statutes by which
respondents are entitled to attorney fees.
The general rule is that in the absence of a specific
contract provision or statutory grant, the prevailing party
is not entitled to an award of attorney fees either as costs
of action or elements of damage. Martin v. Crown. Life Ins.
(Mont. 1983), 658 P.2d 1099, 1104, 40 St.Rep. 216, 221.
The statutes cited by respondents as authority for attorney
fees in this case include 5530-14-222, 27-1-316 and
28-3-704, MCA.
Section 30-14-222, MCA, is a provision for damages
where there has been an unlawful restraint of trade. Since
we have reversed the District Court on the unlawful restraint
of trade issue, § 30-14-222, MCA, i.s no longer applicable to
this case.
Section 27-1-316, MCA, provides the measure of damages
for breach of covenants in grants of estates in real proper-
ty. This statute makes no allowances for attorney fees where
the covenantor brings an action for breach of contract
against the convenantee as is the case here. Therefore,
S 27-1-316, MCA, is also inapplicable to this case.
Section 28-3-704, MCA, provides for a contractual right
to attorney fees. However, this statute is not applicable to
the June 11, 1971 agreement that appellants sued on. Section
28-3-704, MCA, provides:
Whenever by virtue of the provisions of
any contract or obligation in the nature
of a contract made and entered into at
any time after July - -
1, 1971, one party
to such contract or obliga.tion has an
express right to recover attorney fees
from any other party to the contract or
obligation in the event the party having
that right shall bring an action upon
the contract or obligation, then in any
action on such contract or obligation
all parties to the contract or obliga-
tion shall be deemed to have the same
right to recover attorney fees and. the
prevailing party in any such action,
whether by virtue of the express con-
tractual right or by virtue of this
section, shall be entitled to recover
his reasonable attorney fees from the
losing party or parties. (Emphasis
added. )
The agreement with the attorney fees provision was
entered prior to July 1, 1971, and was found by the District
Court to have been merged in the deeds which contain no such
provisions. Therefore, this statute does not apply.
Thus, none of the statutes relied upon by respondents
entitle them to attorney fees. The District Court is
reversed on its award of attorney fees to respondent.
The District Court's denial of recission and injunction
is affirmed. However, we reverse the declara.tion that the
commercial use restriction is void and also the award of
attorney fees. We direct entry of judgment in accordance
with this decision.
We concur: