Harksen v. Peska

1998 SD 70, 581 N.W.2d 170, 1998 S.D. LEXIS 69
CourtSouth Dakota Supreme Court
DecidedJuly 1, 1998
DocketNone
StatusPublished
Cited by22 cases

This text of 1998 SD 70 (Harksen v. Peska) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harksen v. Peska, 1998 SD 70, 581 N.W.2d 170, 1998 S.D. LEXIS 69 (S.D. 1998).

Opinions

MILLER, Chief Justice.

[¶ 1.] Gene Peska purchased a tract of land in the Black Hills of South Dakota and built a “cabin”1 thereon. A neighboring property owner, John Harksen, later brought suit to enforce restrictive covenants that limited the number of buildings that could be built on the land. In a bifurcated trial, the trial court determined that the restrictive covenants were not ambiguous, and that a mandatory injunction for the removal of the cabin should issue. Peska appeals. We affirm in part and reverse and remand in part.

FACTS

[¶2.] On April 30, 1969, John C. Farrar and Ray J. Aldrich purchased 210 acres of scenic land in the Black Hills. Title was taken in their names, but it was understood that actual ownership of the land would be held by an informal partnership known as The Slate Creek Club.2 Each member of The Slate Creek Club was to receive one lot for their participation.

[¶3.] On November 13, 1973, Farrar and Aldrich filed a Declaration of Protective and Restrictive Covenants in the Pennington County Register of Deeds’ Office. The Declaration consisted of two prefatory paragraphs of recitals of ownership and intent and purpose of the owners,3 followed by sev[172]*172enteen specific covenants. Three of these covenants are applicable to this controversy, and provide:

(1) Restrictive covenants herein contained shall continue in force for a period of fifty (50) years from the date hereof and are applicable to any deed recorded after the date of these covenants.
(2) No more residences may be built on any parcel of property conveyed to a grantee after the date of these covenants than is specified in the deed to the first grantee.
******
(11) There shall be no subdivision of any tract conveyed to a grantee and recorded after the date of these covenants except where residences in excess of one are permitted on the deed.

[¶ 4.] On January 22, 1974, Harksen and his wife Cynthia4 purchased ten acres of the 210-acre tract from Farrar and Aldrich. Cynthia later quitclaimed her interest to Harksen.

[¶ 5.] A short time after Harksen purchased his ten-acre tract, Farrar and Aldrich executed and delivered a warranty deed for a twenty-seven and one-half acre site to Aid-rich and his wife Lucille. Aldrichs had previously erected a residence on their site, and the deed to them did not contain a provision allowing for an additional residence.

[¶ 6.] In 1987, Aldrichs sold their land to Peggy Buckwheat. The deed to her stated: “Not more than one (1) additional residence shall be constructed upon the premises above-described for a term of fifty (50) years after the date hereof.” Buckwheat sold twenty acres of the tract to Judith Goudy in May of 1990, and the remaining seven and one-half acres to Gene and Betty Peska in August, 1992.5

[¶ 7.] Peska had purchased the property with the intention of building a summer residence thereon. He received a letter on July 8.1993, from Robert A. Warder, a member of the Slate Creek Club, who was also acting as Harksen’s attorney at that time. The letter specifically advised Peska that “if there is any attempt to construct or build on this property in violation of the covenants on this property, Mr. Harksen ... will enforce the covenants by all legal or equitable means including, but not limited to injuctative [sic] relief.” Peska did not contact an attorney after receiving the letter, but did seek assurances from Buckwheat and the realtor who sold him the property that he could build a residence. Peska received a county building permit on August 19, 1993, and commenced construction thereafter.

[¶ 8.] Peska was served with the summons and complaint in this action on September 22.1993. Despite the pending lawsuit, Peska continued construction on the summer home, finally finishing three months later in mid-December of 1993. He valued the cabin at $130,000.6

[¶ 9.] The trial court bifurcated the proceedings, first having a trial as to whether the restrictive covenants were violated, followed by a second trial to ascertain the appropriate remedy. The trial court held the covenants were unambiguous and that they applied to any deed issued after November, 1973, when the covenants went into effect. It thus determined that the “deed to the first grantee” was the one from Aldrich and Far-rar to Aldrich and his wife. The court then held covenant number 11 prohibited the further subdivision of Aldrichs’ land, and covenant number 2 prohibited building any more residences on the land. Thus, under the court’s ruling, Peska’s seven and one-half acre tract and his cabin on that tract were in violation of the covenants.

[¶ 10.] After the separate hearing on the issue of remedies, the trial court issued a [173]*173mandatory injunction requiring the removal of Peska’s cabin. Peska appeals, and raises the following issues:

1. Whether the trial court erred in determining the restrictive covenants were unambiguous.
2. Whetlier the trial court erred in issuing a mandatory injunction ordering Peska to physically remove his cabin.

STANDARD OP REVIEW

[¶ 11.] On appeal we read a covenant as we would a contract, that is, without any presumption that the trial court was correct. Spring Brook Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 (S.D.1993) (citing Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D.1990)). Whether a contract is ambiguous is a question of law. Id. (citations omitted). Questions of law are reviewed de novo. Roth v. Roth, 1997 SD 75, ¶ 7, 565 N.W.2d 782, 784.

[¶ 12.] As to the second issue, our review of a trial court’s granting an injunction is: “(1) Were any of the facts found by the trial court clearly erroneous? and (2)[i]f not, taking the facts as true, did the court abuse its discretion in granting the injunction?” Maryhouse, Inc. v. Hamilton, 473 N.W.2d 472, 474 (S.D.1991).

DECISION

[¶ 13.] 1. Whether the trial court erred in determining the restrictive covenants were unambiguous.

[¶ 14.] Peska argues that the restrictive covenants were ambiguous. Specifically, he takes issue with the language of covenant number 2, which provides:

No more residences may be built on any parcel of property conveyed to a grantee after the date of these covenants than is specified in the deed to the first grantee.

Peska claims the term “first grantee” is ambiguous. We do not agree.

[¶ 15.] “A contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.” Spring Brook Acres, 505 N.W.2d at 780. A contract is not ambiguous merely because two parties do not agree as to its proper construction. Ducheneaux v. Miller, 488 N.W.2d 902, 909 (S.D.1992).

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Cite This Page — Counsel Stack

Bluebook (online)
1998 SD 70, 581 N.W.2d 170, 1998 S.D. LEXIS 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harksen-v-peska-sd-1998.