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Oklahoma Court of Civil Appeals Cases |
PIRTLE v. WADE
1979 OK CIV APP 4
593 P.2d 1098
Case Number: 51242
Decided: 01/23/1979
Cite as: 1979 OK CIV APP 4, 593 P.2d
1098
ZELFA PIRTLE, RAY MILTZ, CHARLES O'REAR AND
A.A. GREGOLI, APPELLEES,
v.
R.E. WADE, APPELLANT.
Appeal from the District Court, Tulsa County;
B.R. Beasley, Judge.
REVERSED.
Jarboe &
Thompson by John B. Jarboe, Tulsa, for appellees.
Parks & Beard by Curtis A. Parks, Michael J. Beard, James A. Williamson,
Tulsa, for appellant.
ROMANG,
Presiding Judge
¶1 The
Appellant-Defendant (Appellant) sought to erect a radio antenna on his home lot
as a part of his hobby as a ham radio operator. The Appellees, some of his
neighbors, expecting the antenna to be unsightly, sought to enjoin the erection
of the antenna and succeeded in the court below. In this appeal the Appellant
urges reversal on several grounds, i.e. that the erection of an antenna was not
precluded by the applicable restrictive covenants and, if it was, the
restrictive covenants were properly waived.
¶2 This is
an equitable action. An appellate court in an equity case must review the
record and may substitute its judgment on factual matters provided it pays
sufficient deference to the trial court's greater opportunity to judge
witnesses' credibility and to resolve conflicting testimony. In this case this
appellate duty is less significant because the testimony is clear that some of
the neighbors in the subdivision reasonably expect the antenna to be unsightly
to them and that there is likely to be some effect on the surrounding property
values as a result of the antenna's erection.
¶3 But the
action is not one to declare a nuisance but to enforce restrictive covenants.
It is basic law in our society that the unencumbered use of real property is
the rule that restrictions contained in restrictive covenants are narrowly
construed and all doubts should be "resolved in favor of the unencumbered
use of the property. When differences arise, the intention of the party
encumbering the property as expressed in the conveyance must be looked to and
consideration given to the entire context of the instrument rather than to a
single phrase or clause." Public Service Co. of Okla. v. Home Builders
Assn. of Realtors, Inc., 554 P.2d
1181, 1186 (Okl. 1976).
¶4 Nowhere
does the "Deed of Dedication" specifically exclude exterior antennas,
television or radio. The Appellees argue, and the evidence showed, that the
development was intended to be residential with all that implies. From this
they conclude that a large, exterior radio antenna is impliedly excluded. While
some uses of real property may be impliedly excluded by a restrictive covenant,
the cited case indicates great care. Too great a willingness by a court to
imply restrictions on the use of real property may diminish property rights
beyond that intended by the grantor.
¶5 In this
case the Deed states: "[n]o lot shall be used except for residential
purposes." But no evidence was presented to indicate the proposed antenna
was to be used for other than hobby purposes. We deem hobbies to be within the
normal range of activities conducted at one's residence. While this might not
apply to a "hobby" which was in actuality a small business, there is
no evidence that the hobby in this case is income producing.
¶6 The Deed
also provides:
3.
No noxious or offensive trade or enterprise shall be carried on upon any lot,
nor shall anything be done thereon which may be, or become, anything annoying
or a nuisance to the neighborhood.
To our minds
this clause connotes some activity rather than the existence of a radio
antenna. While this construction is not absolute, it is supported by the
injunction to resolve all doubts in favor of the unencumbered use of real
property.
¶7
Additionally, there is a basis in the Deed for the conclusion that if there was
an intended restriction, it was waived. Paragraph 10 of the Deed provides that
all construction plans shall be submitted to the grantors or their designee for
approval. It also provides that
[t]he
undersigned grantors . . . or their designee shall have the exclusive right to
grant approvals required by this Deed of Dedication and to waive or vary the
restrictions and particular aspects whenever, in the grantor's opinion, such
waiver or variance is in the best interest of the owners of the adjoining
property. Should plans be submitted, and no action taken within 30 days of the
date of submission, then, in such case, said plans shall be deemed approved.
The
Appellant submitted an "Application for Construction Approval" under
paragraph 10 and received no response. Appellee argues this is not sufficient
for waiver because the "Application" did not specify "the
proposed color or location of the radio tower for which construction approval
is sought" and that the "approval by silence" provision of
paragraph 10 applies only to "plans" and not a waiver or variance
from a restriction.
¶8 An
application might be rejected for failure to denote color or location but
paragraph 10 does not render the application void for this reason. Appellees
misconstrue our cases when they suggest that the restrictive covenant is to be
strictly construed. The rule is that a restrictive covenant is to be strictly
construed in favor of unencumbered uses of real property.
¶9 Applying
that rule as well to the next argument we fail to find a clear intent to
distinguish between a "plan" and a "waiver or variance."
Paragraph 10 has four sentences. The first speaks about "all plans",
the second prohibits the erection of any structure "until specifications .
. . shall have been submitted to and approved in writing . . . by the
undersigned grantors . . . ." The third sentence, quoted above, reserves
to the grantors the "exclusive right to grant approvals . . and to waive
or vary the restrictions . . ." Sentence four raises the problem when
it provides for approval of "plans submitted" if "no action
is taken within 30 days of date of notification . . . ." In context, and
construed strictly in favor of the unencumbered use of real property, we
believe the "approval by silence" must be construed to include plans
calling for a variance.
¶10 Viewed
in context we find no prohibition of the erection of an outside radio antenna
as proposed in this case. Appellee argues that since there is no reference to
paragraph 10 in paragraph 3 that the power to waive or grant variances to its
provisions was not reserved to the grantor. The argument is plausible but not
conclusive. Nothing in paragraph 10 limits its scope and this ambiguity, if it
is one, must again be resolved in favor of the owner's right to decide on
usage.
¶11 We
believe the trial court improperly construed the Deed and gave too great
significance to the reasonable, subjective desires of the neighbors to preserve
the aesthetics of the neighborhood as they see them. Such evidence can be
persuasive but is not a basis for restricting property rights - unless it
amounts to a nuisance as defined in Oklahoma law. In modern urban society many
property rights are restricted by covenant, zoning ordinances or other law. We
take seriously the injunction of the Supreme Court to view private restrictive
covenants in an unfavored light and to construe them in favor of the free use
of real property.
¶12 The
judgment below is reversed and the injunction is lifted.
¶13
REVERSED.
¶14
REYNOLDS, J., concurring.
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