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08/20/93 H. LEO DANIEL AND BARBARA DANIEL v. VERNON

August 20, 1993

H. LEO DANIEL AND BARBARA DANIEL, WILEY A. DANIEL AND ALICE E. DANIEL, LAD L. PRUCHA, AND DOREEN J. PRUCHA, WILLIAM J. NEUSTADT AND RUTH NEUSTADT, PLAINTIFFS-RESPONDENTS,
v.
VERNON H. GALLOWAY AND P. AUDREY GALLOWAY, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY. Honorable Mary Dickerson, Judge

Garrison, Montgomery, Flanigan

The opinion of the court was delivered by: Garrison

Respondents (Plaintiffs), owners of lots in Sunny Slope Subdivision in Camden County, Missouri, filed a Petition For Injunction alleging that appellants (the Galloways) were maintaining a "house trailer" in the subdivision in violation of restrictive covenants. The trial court entered judgment for the Plaintiffs and ordered the removal of the Galloways' structure within sixty days. The Galloways appeal from that judgment.

The original plat of Sunny Slope Subdivision was filed in 1959 and included the following restrictions:

No more than one dwelling with one additional building or garage or store room shall be erected on any lot, which said building or buildings shall be placed upon a permanent foundation, with exterior to be of frame, stone, brick, stucco, or asphalt shingles or wooden shingles, but specifically prohibiting imitation siding and paper siding, and if building is of concrete or block construction, the same must be covered with one of the approved finishes. The dwelling must be a minimum of Four Hundred (400) square feet in exterior size excluding garage. . . . House trailers of a minimum length of Thirty-five (35) feet and completely modern may be placed upon Blocks Seven (7), Eight (8), and Nine (9) only.

In 1961 the same restrictions were incorporated by reference when the second addition to the subdivision was platted. In January 1977, the Galloways purchased two lots in Block 13 of the subdivision's second addition. The deeds conveying the property contained the words "subject to all restrictions . . . of record." In July 1984, the structure, which Plaintiffs contend is a prohibited "house trailer," was purchased by the Galloways, moved onto one of their lots, and assembled.

The structure in question cost $29,121.87 and was constructed and delivered in two sections. Each section had two steel I-beams running from end to end, which provided support during transport but which were primarily for support after it was assembled and installed. The purchase price of the home did not include axles, wheels, or hitches, and those used to transport the sections were removed after installation and retained by the seller. The two sections were joined after being placed on a poured concrete perimeter wall in which pockets were left to accept the ends of the I-beams. Concrete footings supported both the perimeter wall as well as concrete blocks which were stacked at various points under the I-beams to provide support. At the time of installation, the structure was also connected to a septic tank, water and electricity.

When assembled, the structure measured 44 x 28 feet and contained approximately 1230 square feet of floor space consisting of three bedrooms, living room, kitchen, two baths, and utility room. It had a pitched roof with asphalt shingles and a gable over the front door and on both ends of the home, wood siding, 2 x 6-inch sidewalls, R-19 insulation, self-storing storm windows, guttering, and central air, in addition to other features. When they ordered the home, the Galloways customized the standard floor plan by altering the breakfast bar and adding an exterior sliding door. After the structure was installed, the Galloways added a front porch with roof, a deck on the back, and landscaping. The undisputed testimony was that the Galloways purchased the structure intending it to be their permanent residence and that they had no intention of moving it after it was placed on the lot. The Galloways argue that it is a permanent structure which is a "manufactured home" and not a "house trailer" prohibited by the restrictions.

The Galloways allege, on this appeal, that the trial court misapplied the law to its own factual findings; the judgment was not supported by substantial evidence and was against the weight of the evidence; and an injunction was not authorized because Plaintiffs failed to meet their burden of proof.

In reviewing court-tried cases we are to sustain the trial court's judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Such cases are reviewed upon both the law and the evidence with due regard given to the trial court's opportunity to Judge the credibility of witnesses. Rule 73.01(c); *fn1 Phillips v. Schwartz, 607 S.W.2d 203, 206 (Mo.App. 1980).

Restrictive covenants are not favorites of the law and are to be strictly construed. Schneider v. Forsythe Group, Inc., 782 S.W.2d 139, 143 (Mo.App. 1989); Brasher v. Grove, 551 S.W.2d 302, 303 (Mo.App. 1977). A restrictive covenant is not open to judicial construction if it is unambiguous. Dierberg v. Wills, 700 S.W.2d 461, 468 (Mo.App. 1985). The intent of the parties, as expressed in the plain language of the restrictive covenant, should be given effect by the courts. Blevins v. Barry-Lawrence County Association for Retarded Citizens, 707 S.W.2d 407, 408 (Mo. banc 1986). Terms used in restrictive covenants should be applied in accordance with their plain, everyday or popular meaning. Simcox v. Obertz, 791 S.W.2d 440, 442 (Mo.App. 1990). The language used in the entire instrument should be considered, however, and not just one clause. Weiss v. Fayant, 606 S.W.2d 440, 442 (Mo.App. 1980); Pellegrini v. Fournie, 501 S.W.2d 564, 565 (Mo.App. 1973). Such covenants are to be interpreted narrowly, and in so doing the court must be careful not to go beyond the express stipulations. St. Louis Union Trust Co. v. Tipton Electric Co., 636 S.W.2d 357, 359 (Mo.App. 1982).

Where there is doubt as to the meaning of a restriction, it is proper to consider the parties' situation, together with accompanying circumstances, to determine the intention of the parties. Berkley v. Conway Partnership, 708 S.W.2d 225, 227 (Mo.App. 1986); Phillips v. Schwartz, 607 S.W.2d at 207. This includes an inquiry into the purpose the parties sought to accomplish by the restrictive covenant. Phillips v. Schwartz, 607 S.W.2d at 207; Hanna v. Nowell, 330 S.W.2d 595, 599 (Mo.App. 1959). The critical time in determining what was intended by the restrictions is at the time the subdivision was platted. Phillips v. Schwartz, 607 S.W.2d at 207; Weber v. Les Petite Academies, 548 S.W.2d 847, 851 (Mo.App. 1976). The burden of proving that the use being made of the property is in violation of the restrictions is on the party seeking to enforce them. Brasher v. Grove, 551 S.W.2d at 303-304. The words of the restrictive covenants are not to be extended by implication, and any reasonable doubt as to their meaning is to be resolved in favor of the free use of land. Brasher v. Grove, 551 S.W.2d at 303.

In the instant case, "house trailers" were described in the testimony as the single section units manufactured in the 1950's and 1960's with metal siding, metal roof, crank-out windows, a hitch permanently mounted on the front, wheels and axles left in place for movability, and not built pursuant to standardized codes. The trial court found they were built as a means of temporary housing that could be moved.

The design of such structures evolved over the years from expanding the width of single-wide homes in the 1960's and 1970's to the later split or sectional homes, similar to the one in issue here, which the trial court found were built as permanent housing. The evidence was that the company which sold the subject structure to the Galloways ...


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