Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Statham

Supreme Court of Georgia

Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Statham

254 S.E.2d 833, 243 Ga. 448, 1979 Ga. LEXIS 932

CourtSupreme Court of Georgia

DecidedApril 5, 1979

Docket34502

StatusPublished

Cited by13 cases

This text of 254 S.E.2d 833 (Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Statham) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Statham, 254 S.E.2d 833, 243 Ga. 448, 1979 Ga. LEXIS 932 (Ga. 1979).

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Bowles, Justice.

Appellees, property owners in Cumberland Subdivision, Spalding County, Georgia, brought suit against the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, hereinafter appellant, seeking to enjoin its construction of a church building in Cumberland Subdivision. They contend that the land in that subdivision is subject to certain recorded restrictive covenants placed on it by the original grantor, John R. Carlisle, and that the building of the church violates these covenants. The trial court found that the building of the church violated the restrictive covenants and issued a permanent injunction prohibiting appellant from erecting any structure not designated and used for single family residential purposes and which did not contain 1,600 square feet of heated living area.

The only covenants relevant to this case are as follows:

"2. No building shall be constructed which does not contain a minimum of 1,600 square feet of heated living area.

"7. No lot shall be divided in any manner but shall [449]*449remain intact as a single family residential unit, except upon the express written consent of John R. Carlisle.

"10. Exception may be had from these protective covenants by the express written consent of all persons owning a lot covered hereby but exception hereto shall not waive the force and effect of any protective covenant as to future encroachments, which shall also require permission in the same manner.”

The trial court found as a matter of fact that the proposed church did not contain any living area and, therefore, its construction violated covenant No. 2 which requires 1,600 square feet of heated living area. The trial court concluded as a matter of law that in covenant No. 7, the grantor retained only the authority to allow further subdivision of the lots, but not the authority to waive the use of the lots as single family residence lots and that, therefore, the building of a church violated this covenant as well since restriction No. 10, the general waiver provision, had not been met.

In determining whether or not the trial court erred in enjoining the appellants, we must keep several important principles in mind:

(1) "It is the general rule that the owner of land has the right to use it for any lawful purpose, and restrictions upon its use must be clearly established and strictly construed.” Davis v. Miller, 212 Ga. 836, 837 (96 SE2d 498) (1957). Doubt as to restrictions and use will be construed in favor of the grantee. Voyles v. Knight, 220 Ga. 305 (138 SE2d 565) (1964).

(2) "Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument.” Davis v. Miller, supra, at 837.

(3) The exercise of discretion by the lower court in granting an injunction will not be:4nterfered with in the absence of manifest abuse. Lawrence v. Harding, 226 Ga. 148 (173 SE2d 197) (1969).

(4) Discretion is limited to cases in which there is a conflict in the evidence. "Where there is no material conflict in the evidence, the applicable rules of law cannot be avoided on the basis of discretion.” Davis v. Miller, supra, at 840.

[450]*450In construing covenant No. 7, the trial court had no evidential conflicts to consider but simply made his decision as a matter of law. We conclude that his construction of that covenant was erroneous as a matter of law. There is no basis for breaking that covenant into two parts and holding that the grantor could waive, one part and not the other. It is plain that the grantor was reserving in himself the right to waive covenant No. 7 in its entirety and this he did in his deed to appellant.¹ We therefore need not consider whether or not it was error to exclude the grantor’s testimony as to his intention in drafting the covenants. Since the grantor waived the right to insist that appellant use its lots for a single family residential unit, the trial court erred in enjoining appellants from erecting any structure not designated and used for single family residential purposes.

With reference to covenant No. 2, the trial court found that the proposed church building did not contain any "living area.” Since this determination was factual in nature, it can be overturned only by a showing of manifest abuse of discretion. The burden is on the appellant to show error in the trial court’s ruling. Appellant has not even attempted to show that this finding was erroneous much less how it constituted an abuse of discretion. Rather appellant appears to be relying on its erroneous belief that all covenants were subject to the waiver provision of covenant No. 7. It is plain from examination of the record that the trial court interpreted "living area” to mean an area in which people reside. Appellant has not argued that such interpretation is erroneous and it does not appear to be the result of a manifest abuse of discretion. Therefore, that interpretation is binding on this appellant. Appellant is permitted within the restrictive covenants to build a church building but that building [451]*451must contain 1,600 square feet of heated living area in which someone resides.

Submitted January 26,1979 Decided April 5, 1979. Fritz Albrecht, for appellant. Beck, Goddard, Owen & Murray, Richard L. Collier, for appellees.

Appellant’s enumerations of error relating to a different church possibly being built in the same subdivision need not be considered. Whether or not another church is being built and whether or not anyone is seeking to enjoin such building is not relevant to this case. Allegations of prejudice against this appellant church are unfounded since the appellee questioned, testified positively that he would seek to enjoin the construction of any church in his subdivision.²

Judgment affirmed in part, reversed in part.

All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., Hall and Hill, JJ., who dissent.

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Bowles, Justice.

Appellees, property owners in Cumberland Subdivision, Spalding County, Georgia, brought suit against the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, hereinafter appellant, seeking to enjoin its construction of a church building in Cumberland Subdivision. They contend that the land in that subdivision is subject to certain recorded restrictive covenants placed on it by the original grantor, John R. Carlisle, and that the building of the church violates these covenants. The trial court found that the building of the church violated the restrictive covenants and issued a permanent injunction prohibiting appellant from erecting any structure not designated and used for single family residential purposes and which did not contain 1,600 square feet of heated living area.

The only covenants relevant to this case are as follows:

"2. No building shall be constructed which does not contain a minimum of 1,600 square feet of heated living area.

"7. No lot shall be divided in any manner but shall [449]*449remain intact as a single family residential unit, except upon the express written consent of John R. Carlisle.

"10. Exception may be had from these protective covenants by the express written consent of all persons owning a lot covered hereby but exception hereto shall not waive the force and effect of any protective covenant as to future encroachments, which shall also require permission in the same manner.”

The trial court found as a matter of fact that the proposed church did not contain any living area and, therefore, its construction violated covenant No. 2 which requires 1,600 square feet of heated living area. The trial court concluded as a matter of law that in covenant No. 7, the grantor retained only the authority to allow further subdivision of the lots, but not the authority to waive the use of the lots as single family residence lots and that, therefore, the building of a church violated this covenant as well since restriction No. 10, the general waiver provision, had not been met.

In determining whether or not the trial court erred in enjoining the appellants, we must keep several important principles in mind:

(1) "It is the general rule that the owner of land has the right to use it for any lawful purpose, and restrictions upon its use must be clearly established and strictly construed.” Davis v. Miller, 212 Ga. 836, 837 (96 SE2d 498) (1957). Doubt as to restrictions and use will be construed in favor of the grantee. Voyles v. Knight, 220 Ga. 305 (138 SE2d 565) (1964).

(2) "Restrictive covenants will be construed to carry out the intention of the parties, if that intention can be ascertained from a consideration of the whole instrument.” Davis v. Miller, supra, at 837.

(3) The exercise of discretion by the lower court in granting an injunction will not be:4nterfered with in the absence of manifest abuse. Lawrence v. Harding, 226 Ga. 148 (173 SE2d 197) (1969).

(4) Discretion is limited to cases in which there is a conflict in the evidence. "Where there is no material conflict in the evidence, the applicable rules of law cannot be avoided on the basis of discretion.” Davis v. Miller, supra, at 840.

[450]*450In construing covenant No. 7, the trial court had no evidential conflicts to consider but simply made his decision as a matter of law. We conclude that his construction of that covenant was erroneous as a matter of law. There is no basis for breaking that covenant into two parts and holding that the grantor could waive, one part and not the other. It is plain that the grantor was reserving in himself the right to waive covenant No. 7 in its entirety and this he did in his deed to appellant.¹ We therefore need not consider whether or not it was error to exclude the grantor’s testimony as to his intention in drafting the covenants. Since the grantor waived the right to insist that appellant use its lots for a single family residential unit, the trial court erred in enjoining appellants from erecting any structure not designated and used for single family residential purposes.

With reference to covenant No. 2, the trial court found that the proposed church building did not contain any "living area.” Since this determination was factual in nature, it can be overturned only by a showing of manifest abuse of discretion. The burden is on the appellant to show error in the trial court’s ruling. Appellant has not even attempted to show that this finding was erroneous much less how it constituted an abuse of discretion. Rather appellant appears to be relying on its erroneous belief that all covenants were subject to the waiver provision of covenant No. 7. It is plain from examination of the record that the trial court interpreted "living area” to mean an area in which people reside. Appellant has not argued that such interpretation is erroneous and it does not appear to be the result of a manifest abuse of discretion. Therefore, that interpretation is binding on this appellant. Appellant is permitted within the restrictive covenants to build a church building but that building [451]*451must contain 1,600 square feet of heated living area in which someone resides.

Submitted January 26,1979 Decided April 5, 1979. Fritz Albrecht, for appellant. Beck, Goddard, Owen & Murray, Richard L. Collier, for appellees.

Appellant’s enumerations of error relating to a different church possibly being built in the same subdivision need not be considered. Whether or not another church is being built and whether or not anyone is seeking to enjoin such building is not relevant to this case. Allegations of prejudice against this appellant church are unfounded since the appellee questioned, testified positively that he would seek to enjoin the construction of any church in his subdivision.²

Judgment affirmed in part, reversed in part.

All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., Hall and Hill, JJ., who dissent.

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254 S.E.2d 833, 243 Ga. 448, 1979 Ga. LEXIS 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corporation-of-the-presiding-bishop-of-the-church-of-jesus-christ-of-ga-1979.

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