REYNOLDS, Judge.
Mrs. Nancy Bishop, appellant (plaintiff below), was awarded $1,801 damages in an action instituted against adjoining property owners, William and Patricia Rueff. This is an appeal and cross-appeal from the judgment.
The Rueffs had constructed a backyard patio and enclosed it with a 7-foot high “wooden slab” fence. One section of the fence was erected upon the parties’ common boundary which was in near proximity to the side of the Bishop home. As a result of this improvement, appellant alleged damages resulting in changes from the water-flow across her property, as well as from the interference with her use and enjoyment of the property, and, additionally, she had sought injunctive relief to bring the fence into compliance with cited restrictive covenant.
A Mr. George Imorde initially owned a sizeable tract of property, and from a portion of the tract he established four lots, one of which he sold to Mrs. Bishop in June of 1957, and her deed contained the following restriction:
As a further consideration for this conveyance, it is hereby agreed that the property herein conveyed shall be subject to the following restrictions:
No. 4 — No solid board fence shall be erected on the property. Fencing, if any, shall be of rail, picket or shrub. Fences, other than shrub, shall not exceed four feet in height.
It is further agreed that the restrictions hereinabove set out shall apply to and affect all the remaining property of the parties of the first part as was conveyed to George H. Imorde by deed of record in Deed Book 2672, Page 566, in the aforesaid Clerk’s office.
[720]*720Subsequent to this transaction, and before June 17, 1959, three additional lots were sold by Mr. Imorde, and with only one of those deeds (Lot 251 sold on July 3,1957) containing notice of these restrictions. On March 29, 1962, Mr. Imorde disposed of a larger tract constituting the remainder of this property to developers David H. Wilson and Bobby J. Welsh. A subdivision containing eleven lots, being known as Trough Springs, was then developed with separate restrictions, none of which mentioned, nor did the deeds refer to, or notice, the restrictions contained in Mrs. Bishop’s deed. On June 1, 1973, appellees became owners of a Trough Springs Subdivision lot which abutted the Bishop property.
Appellees were unaware of the restrictions until their backyard construction was substantially complete. This area had been graded, as well as elevated, which allowed water to flow/stand upon appellant’s property.
In its instructions to the jury, the court ruled that the restrictions serving as the basis for appellant’s claim for injunctive relief were inapplicable. The court reasoned that in the absence of notice in the direct chain of title, appellees were not charged with duty of notice. By the instructions, the jury was permitted to find a maximum of $2,200 for future cost of remedy, and a maximum of $450 for past costs of remedy if it determined that the appel-lees’ improvements caused/diverted drainage water to interfere with appellant’s right to the use and enjoyment of her property. Additionally, and in the event the jury determined that the fence constituted a nuisance in that it interfered with appellant’s enjoyment and comfort of her property, the jury was instructed to fairly and reasonably compensate her for the resulting discomfort, not to exceed $10,000. The jury awarded damages in the sum of $901 for the interference with appellant’s right to the use and enjoyment of her property as a result of the diverted drainage water; awarded her $100 for damages sustained by trespass in the construction of the fence; and $800 for the discomfort suffered by her as provided under an instruction on “nuisance”. After the close of the case, the parties filed objections to the court’s instructions. The record contains no objections made prior to this time.
Appellant argues that the deed restrictions ran with the land and were therefore binding on any subsequent purchasers of remaining portions of the original tract, and that the court’s instructions were contrary to law and erroneous. On cross-appeal it is asserted that the court erred in not directing a verdict in their favor at the close of all evidence regarding the claims for water damage and nuisance.
Generally, the grantee is charged with notice of an encumbrance upon property created by an instrument which is of record, notwithstanding the fact that it may exist only collaterally in the chain of title. Harp v. Parker, 278 Ky. 78, 128 S.W.2d 211 (1939). The trial court determined that the restrictive covenant from the Bishop deed had no application to the lot subsequently acquired by appellees. The criteria for determining whether a covenant runs with the land or is merely personal between the grantor and the grantee include the intent of the parties, whether the covenant must affect or concern the land with which it runs, and whether privity of estate exists between the party claiming the benefit and the party who rests under the burden. 21 C.J.S. Covenants § 54. While the Bishops’ deed was not in appellees’ chain of title, we are aware of no rule that a restrictive covenant of this nature must meet such requirement. We believe that appellees were on constructive notice as to the restriction limiting fences, and there is some evidence of actual notice. The “chain of title” argument seems to have been disposed of by Harp v. Parker, supra.
We believe the governing principle involved is stated in McLean v. Thurman, Ky., 273 S.W.2d 825, 829 (1954). Where the owners of two or more lots situated near one another convey one of the lots with express restrictions applying thereto in favor of the land retained by the grantor, the [721]*721servitude becomes mutual, and during the period of restraint the owner of the lots retained may do nothing that is forbidden to the owner of the lot sold. The restriction is enforceable against the grantor, or subsequent purchaser, with notice, actual or constructive. Also, see Anderson v. Henslee, 226 Ky. 465, 11 S.W.2d 154 (1928).
The deed of conveyance between Imorde and appellant contains words indicating that the parties intended for the restrictive covenants to run with Imorde’s remaining lands and thus be binding on subsequent purchasers. After the Bishop sale, Imorde sold three additional residential lots. One of the deeds contained the restriction. We hold that the trial court erred by denying injunctive relief.
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REYNOLDS, Judge.
Mrs. Nancy Bishop, appellant (plaintiff below), was awarded $1,801 damages in an action instituted against adjoining property owners, William and Patricia Rueff. This is an appeal and cross-appeal from the judgment.
The Rueffs had constructed a backyard patio and enclosed it with a 7-foot high “wooden slab” fence. One section of the fence was erected upon the parties’ common boundary which was in near proximity to the side of the Bishop home. As a result of this improvement, appellant alleged damages resulting in changes from the water-flow across her property, as well as from the interference with her use and enjoyment of the property, and, additionally, she had sought injunctive relief to bring the fence into compliance with cited restrictive covenant.
A Mr. George Imorde initially owned a sizeable tract of property, and from a portion of the tract he established four lots, one of which he sold to Mrs. Bishop in June of 1957, and her deed contained the following restriction:
As a further consideration for this conveyance, it is hereby agreed that the property herein conveyed shall be subject to the following restrictions:
No. 4 — No solid board fence shall be erected on the property. Fencing, if any, shall be of rail, picket or shrub. Fences, other than shrub, shall not exceed four feet in height.
It is further agreed that the restrictions hereinabove set out shall apply to and affect all the remaining property of the parties of the first part as was conveyed to George H. Imorde by deed of record in Deed Book 2672, Page 566, in the aforesaid Clerk’s office.
[720]*720Subsequent to this transaction, and before June 17, 1959, three additional lots were sold by Mr. Imorde, and with only one of those deeds (Lot 251 sold on July 3,1957) containing notice of these restrictions. On March 29, 1962, Mr. Imorde disposed of a larger tract constituting the remainder of this property to developers David H. Wilson and Bobby J. Welsh. A subdivision containing eleven lots, being known as Trough Springs, was then developed with separate restrictions, none of which mentioned, nor did the deeds refer to, or notice, the restrictions contained in Mrs. Bishop’s deed. On June 1, 1973, appellees became owners of a Trough Springs Subdivision lot which abutted the Bishop property.
Appellees were unaware of the restrictions until their backyard construction was substantially complete. This area had been graded, as well as elevated, which allowed water to flow/stand upon appellant’s property.
In its instructions to the jury, the court ruled that the restrictions serving as the basis for appellant’s claim for injunctive relief were inapplicable. The court reasoned that in the absence of notice in the direct chain of title, appellees were not charged with duty of notice. By the instructions, the jury was permitted to find a maximum of $2,200 for future cost of remedy, and a maximum of $450 for past costs of remedy if it determined that the appel-lees’ improvements caused/diverted drainage water to interfere with appellant’s right to the use and enjoyment of her property. Additionally, and in the event the jury determined that the fence constituted a nuisance in that it interfered with appellant’s enjoyment and comfort of her property, the jury was instructed to fairly and reasonably compensate her for the resulting discomfort, not to exceed $10,000. The jury awarded damages in the sum of $901 for the interference with appellant’s right to the use and enjoyment of her property as a result of the diverted drainage water; awarded her $100 for damages sustained by trespass in the construction of the fence; and $800 for the discomfort suffered by her as provided under an instruction on “nuisance”. After the close of the case, the parties filed objections to the court’s instructions. The record contains no objections made prior to this time.
Appellant argues that the deed restrictions ran with the land and were therefore binding on any subsequent purchasers of remaining portions of the original tract, and that the court’s instructions were contrary to law and erroneous. On cross-appeal it is asserted that the court erred in not directing a verdict in their favor at the close of all evidence regarding the claims for water damage and nuisance.
Generally, the grantee is charged with notice of an encumbrance upon property created by an instrument which is of record, notwithstanding the fact that it may exist only collaterally in the chain of title. Harp v. Parker, 278 Ky. 78, 128 S.W.2d 211 (1939). The trial court determined that the restrictive covenant from the Bishop deed had no application to the lot subsequently acquired by appellees. The criteria for determining whether a covenant runs with the land or is merely personal between the grantor and the grantee include the intent of the parties, whether the covenant must affect or concern the land with which it runs, and whether privity of estate exists between the party claiming the benefit and the party who rests under the burden. 21 C.J.S. Covenants § 54. While the Bishops’ deed was not in appellees’ chain of title, we are aware of no rule that a restrictive covenant of this nature must meet such requirement. We believe that appellees were on constructive notice as to the restriction limiting fences, and there is some evidence of actual notice. The “chain of title” argument seems to have been disposed of by Harp v. Parker, supra.
We believe the governing principle involved is stated in McLean v. Thurman, Ky., 273 S.W.2d 825, 829 (1954). Where the owners of two or more lots situated near one another convey one of the lots with express restrictions applying thereto in favor of the land retained by the grantor, the [721]*721servitude becomes mutual, and during the period of restraint the owner of the lots retained may do nothing that is forbidden to the owner of the lot sold. The restriction is enforceable against the grantor, or subsequent purchaser, with notice, actual or constructive. Also, see Anderson v. Henslee, 226 Ky. 465, 11 S.W.2d 154 (1928).
The deed of conveyance between Imorde and appellant contains words indicating that the parties intended for the restrictive covenants to run with Imorde’s remaining lands and thus be binding on subsequent purchasers. After the Bishop sale, Imorde sold three additional residential lots. One of the deeds contained the restriction. We hold that the trial court erred by denying injunctive relief.
Regarding the argument on cross-appeal that a verdict should have been directed for appellees at the close of evidence on the claim for water damage and nuisance, we find ample evidence to support a jury finding that appellees’ acts created or substantially contributed to the conditions adversely affecting appellant’s property. Appel-lees were not entitled to a directed verdict.
The balance of the appeal/cross-appeal alleged error for various reasons in the court’s instructions to the jury. At the conclusion of evidence, the court conferred with counsel concerning instructions to be given. Only the counsel for appellant tendered instructions, and counsel for neither party filed objections before the court instructed the jury. Even though the parties were permitted to file objections to the instructions after the close of the case, only those errors properly preserved under CR 51 § 3 may be reviewed on appeal. Kentucky Border Coal Company, Inc. v. Mullins, Ky., 504 S.W.2d 696 (1974). Therefore, we do not undertake to review the instruction errors alleged on cross-appeal and address only the positions presented in instructions offered by appellant.
In the court’s discussion with counsel regarding the instructions, and in light of the court’s holding that the deed restrictions did not apply, it was agreed that the improvements upon appellee’s land were permanent in nature. Appellant argues that the second instruction regarding interference with appellant’s right to the use and enjoyment of her property, as a result of the diverted drainage water, should have utilized, as a measure of damages, the damage to its use, or diminution in market value, during the continuance of the nuisance or injury up to the time of trial.
Temporary damages were defined in Texaco, Inc. v. Melton, Ky., 463 S.W.2d 301 (1971), to be
that which does not prevent the damaged property from being substantially restored to its previous condition at a reasonable cost.
The record establishes, as was ably recognized by the trial court, that temporary damages resulted from an improvement of a permanent nature. Although admittedly an elusive concept, the customary measure of damages or injuries of a temporary character is an amount which will reasonably compensate the injured parties for the diminution in the value of the use and occupancy of the property. City of Danville v. Smallwood, Ky., 347 S.W.2d 516 (1961); Price v. Dickson, Ky., 317 S.W.2d 156 (1958).
The court properly instructed the jury that the proper measure of damages was the cost to remedy the conditions interfering with appellant’s use and enjoyment of her property as a result of the diverted drainage water. The record is without competent evidence to support any measure of damages based upon diminution in market value of the property as a result of the drainage.
The court’s third instruction provided for damages sustained by trespass not to exceed the sum of $900. Counsel for appellant conceded that the facts supported only nominal damages for trespass and is precluded from arguing on appeal that any limitation was erroneous.
Finally, appellant contends that the record did not support a $10,000 limit in the instructions on the nuisance award. However, an examination of the complaint and amended complaint reflects a demand for [722]*722general damages in the amount of only $10,000. The instruction was not in error.
The judgment of the trial court is reversed in part, and appellant is entitled to the enforcement of the restrictive covenant which provides:
No solid board fence shall be erected on the property. Fencing, if any, shall be of rail, picket or shrub. Fences, other than shrub, shall not exceed four feet in height.
The judgment of the trial court, in all other respects, is affirmed.
HOWARD, J., concurs.