Wimer v. Cook

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          Appeal from the District Court of Natrona County. The Honorable Daniel L. Forgey, Judge.

         Representing Appellants in Case No. S-15-0154: Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

         Representing Appellees in Case No. S-15-0154: P. Craig Silva of Williams, Porter, Day, and Neville, P.C., Casper, Wyoming.

         Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          OPINION

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          KAUTZ, Justice.

          [¶1] Rick and Terri Wimer, Curtis and Cynthia Li, and Harv Gloe (hereinafter collectively referred to as the Wimers) filed a complaint against their neighbors, Jerry and Cheri Cook and Cook's Construction, LLC (hereinafter collectively referred to as the Cooks), seeking an injunction prohibiting the Cooks from placing multiple single-family housing structures on a twenty-acre parcel of land owned by the Cooks because, in the Wimers' view, the conduct violated the neighborhood's covenants. The Cooks responded with a counterclaim and a third-party complaint against all their neighbors, including Harold Reimler, individually and as trustee of the Reimler Family Trust, seeking a declaration from the district court that the covenants had been abandoned.^[1] After a bench trial, the district court determined the covenants had not been abandoned and the Cooks' plan to develop the twenty-acre parcel did not violate the covenants. Thereafter, the Wimers filed this appeal and the Cooks cross-appealed. We affirm in part and reverse in part.

         ISSUES

          [¶2] The Wimers raised several issues on appeal, which can be distilled to the following:

Whether the district court erred when it denied the Wimers injunctive relief after determining that the Cooks' plan did not violate the protective covenants.

The Cooks cross-appealed and raised the following issue:

Whether the trial court erred as a matter of law when it drew the legal conclusion that the restrictive covenants have not been abandoned.

         FACTS

          [¶3] On June 7, 1978, Van R. and Kathy Jane Irvine recorded a " Declaration of Covenants, Conditions, and Restrictions" with the Natrona County Clerk for an area that will be referred to as the " Phillips Lane area" in Natrona County. All of the land involved in this case is subject to these covenants. The purpose of the covenants was " to insure the use and development of said property for exclusive residential and agricultural purposes only, to prevent the impairment of the attractiveness of said property for such purposes,

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and to maintain property values therein[.]" Although lengthy, it is important at the outset to quote the following portions of the covenants:

ARTICLE I

DEFINITIONS

1. Residential Use: All of the land designated in this area shall be utilized for single family residential purposes only, except that any and all agricultural operations of any nature may be carried on on any of the land at any time without restriction.

2. Owner: Shall mean and refer to the record owner, whether one or more persons or entities, of a fee simple title to any parcel which is part of the property, including contract buyers, but excluding those having such interest merely as security for the performance of an obligation.

3. Property: Shall mean and refer to that certain real property described in exhibit " A" attached hereto.

ARTICLE II

GENERAL RESTRICTIONS ON ALL OF THE PROPERTY

1. Zoning Regulations: No land within the area shall be occupied, used by, or for, any structure or purpose which is contrary to the zoning regulations of Natrona County, Wyoming.

2. Uses: Each parcel within the area shall be utilized for single family residential building and agricultural activities of any type, all other uses shall be expressly prohibited.

3. Prohibited Activities: Except that the dwelling on any parcel in the area may be leased by the owner or owners thereof for rental income purposes, no business, commercial, or manufacturing enterprise, or any enterprise of any kind or nature, whether or not conducted for a profit, shall be operated, maintained or conducted on any parcel in the area or on any improvement erected or placed therein, nor shall any dwelling or any part thereof be used as a boarding or rooming house, nor shall any mining or quarrying operations or operations for drilling of any oil or gas well be conducted or permitted in the area, nor shall any signs, billboards or advertising devices, except as hereinafter provided, be erected, placed or permitted to remain on any parcel in the area.

. . . .

5. Animals and Livestock: It shall be permissible for the owners of any parcel, in addition to household pets, to own and maintain on the parcel horses, cattle, sheep, chickens and rabbits. No animal or animals shall be maintained in the area even though permissible within this provision, if it is determined that such animal or animals constitute a nuisance to other owners in the area. It is expressly understood that all dogs will be controlled and confined to the immediate household yard area of each and every residence in the area. No dogs shall be allowed to run loose and in any way become a nuisance or danger to the other residents of the area or the surrounding area.

6. No Resubdivisions: No parcel less than twenty (20) acres in size shall be sold or conveyed; however, conveyances or dedication of easements for utilities or private lanes or roads may be made. This provision shall be effective through May 1, 1983. After this date, additional subdivision into parcels less than twenty (20) acres in size may be allowed if provided for under Natrona County zoning regulations.

7. Service Yards and Trash: Clothes lines, service equipment, trash, woodpiles, or storage areas shall be screened by planting or fencing to conceal them from view of neighboring parcels, drives and roads. All refuse and trash shall be removed from all parcels and shall not be allowed to accumulate.

8. Fences: All parcels shall be fenced with at least five (5) barbed wires or sheep-tight woven wire and two (2) barbed wires and shall be maintained according to good ranching and management practices. In the event that the fences are not properly maintained, the adjoining property owner shall have the right to perform the necessary repairs and maintenance and

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share the cost of any repairs and maintenance with the owner.

ARTICLE III

RESTRICTIONS ON RESIDENTIAL TRACTS

1. Number and Location of Buildings: No buildings or structures shall be placed, erected, altered, or permitted to remain on ...