Gary J. Walters et al., Appellants,
Steven W. Colford et al., Appellees.
Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court's grant of summary judgment if the
pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
__ . In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against
whom the judgment was granted and gives such party the
benefit of all reasonable inferences deducible from the
Trial: Juries: Evidence. Where the facts are undisputed or
are such that reasonable minds can draw but one conclusion
therefrom, it is the duty of the trial court to decide the
question as a matter of law rather than submit it to the jury
Summary Judgment: Evidence: Proof. A movant for summary
judgment makes a prima facie case by producing enough
evidence to demonstrate that the movant is entitled to a
judgment if the evidence were uncontroverted at trial. At
that point, the burden of producing evidence shifts to the
party opposing the motion, who must present evidence showing
the existence of a material fact that prevents summary
judgment as a matter of law.
Restrictive Covenants. When restrictive covenants are created
for the mutual benefit of all of the properties within a
development, they may be enforced by each of the property
owners against the other.
6. __ .
The doctrine of implied reciprocal negative servitudes
allows- under very limited circumstances-a servitude to be
created by implication, even where no express servitude
applies to the property at issue.
7. __ .
The requirements for the application of the doctrine of
implied reciprocal negative servitudes are as follows: (1)
There is a common [297 Neb. 303] grantor of property who has
a general plan or scheme of development for the property; (2)
the common grantor conveys a significant number of parcels or
lots in the development subject to servitudes (restrictive
covenants) designed to mutually benefit the properties in the
development and advance the plan of development; (3) it can
be reasonably inferred, based on the common grantor's
conduct, representations, and implied representations, that
the grantor intended the property against which the servitude
is implied to be subject to the same servitudes imposed on
all of the properties within the plan of development; (4) the
property owner against whom the restriction is enforced has
actual or constructive notice of the implied servitude; (5)
the party seeking to enforce the restriction possesses an
interest in property in the development that is subject to
the servitude and has reasonably relied upon the
representations or implied representations of the common
grantor that other properties within the general scheme of
development will be subject to the servitude; and (6)
injustice can be avoided only by implying the servitude.
8. __ .
The law disfavors restrictions on the use of land. Logically,
if express restrictive covenants are disfavored under the
law, implied restrictive covenants are to be viewed with even
9. __ .
Because implied restrictive covenants mandate relaxation of
the writing requirement, courts are generally reluctant and
cautious to conclude implied restrictive covenants exist.
. The doctrine of implied reciprocal negative servitudes
should be applied with extreme caution because in effect it
lodges discretionary power in a court to deprive a person of
his or her property by imposing a servitude through
Property: Boundaries. Whether a general plan or scheme of
development exists and the scope and boundary of that plan
are questions of fact.
Property: Intent: Proof. A grantor's intent to create a
plan of development may be proved from the conduct of parties
or from the language used in deeds, plats, maps, or general
building development plans and by looking to matters
extrinsic to related written documents, including conduct,
conversation, and correspondence.
Property: Boundaries: Presumptions. Where property is
subdivided or platted pursuant to a plan of development, a
presumption arises that the plan of development includes only
those properties in the plat or subdivision.
Restrictive Covenants. The property included within a plan of
development, for purposes of the doctrine of implied
reciprocal negative servitudes, does not necessarily include
all of the developer's land, but can be limited to
certain well-defined similarly situated lots.
Neb. 304] 15. Property: Boundaries. Where a development is
subdivided or platted in separate phases, each phase
constitutes its own separate plan of development.
Restrictive Covenants. The doctrine of implied reciprocal
negative servitudes has no application where a developer
follows the practice of creating restrictions on a
development through a declaration of restrictions.
.A buyer of property has no reasonable expectation that
neighboring property will be restricted as part of a plan of
development pursuant to the doctrine of implied reciprocal
negative servitudes where the entire development has been
restricted through a declaration of restrictions that does
not include that neighboring property.
. The purpose of the doctrine of implied reciprocal negative
servitudes is to protect the reasonable expectations of
purchasers of property who reasonably rely on the
representations or implied representations of a developer
that the other properties within a development will be
. Limiting the scope of the implied reciprocal servitudes
doctrine to situations where restrictive covenants are placed
in individual deeds serves the interest of promoting reliance
on our property recording system.
from the District Court for Butler County: Mary C. Gilbride,
Jeffrey A. Silver for appellants.
B. Vetter and Luke P. Henderson, of Fitzgerald, Vetter,
Temple & Bartell, for appellees Steven W. Colford and
Sara J. Colford.
J. Bierbower for appellee Daniel F. Adamy.
Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and
NATURE OF CASE
issue in this case is whether the property owned by Steven W.
Colford and Sara J. Colford is subject to the neighboring
subdivision's restrictive covenants by virtue of the
doctrine of implied reciprocal negative servitudes. The [297
Neb. 305] district court concluded that it was not and
granted summary judgment to the appellees, the Colfords and
Daniel F. Adamy. We affirm.
appellants, Gary J. Walters and Denise R. Walters, as
cotrustees of the Gary J. Walters and Denise R. Walters
Trust; Aaron Schmid; Jacquelyne J. Romshek; and Cory Micek
(collectively the plaintiffs), brought suit against the
Colfords and Adamy. The suit alleges three claims: mandatory
injunction for violation of the neighboring subdivision's
restrictive covenants, nuisance (derived from the alleged
restrictive covenants violation), conspiracy to violate the
restrictive covenants, and invasion of privacy (later
voluntarily dismissed without prejudice by the plaintiffs).
Colfords moved for summary judgment. The district court
granted the motion with respect to the mandatory injunction
claim and the nuisance claim, but not with respect to the
invasion of privacy claim. The court's order did not
address the conspiracy claim. The court set a pretrial
hearing for the remaining issues in the case. The plaintiffs
appealed from the court's order. The appeal was dismissed
for lack of a final, appealable order. The plaintiffs then
voluntarily dismissed their invasion of privacy claim without
prejudice. The Colfords again moved for summary judgment, and
Adamy joined this motion. The district court granted the
motion with respect to the only remaining issue, the
conspiracy claim, concluding that because the covenants did
not apply to the Colfords' property, there could be no
civil conspiracy to violate the covenants. The plaintiffs
appealed, and we subsequently moved this case to our docket.
plaintiffs are neighbors to the Colfords. The plaintiffs live
in a platted subdivision known as the Adamy subdivision.
Neb. 306] The Adamy subdivision was platted and dedicated in
1976. and the founding documents were filed with the Butler
County register of deeds. The plat and dedication included
restrictive covenants, which, among other things, limited the
structures on the lots to one single-family, two-story house
and one two- or three-car garage. The subdivision contains 14
lots created from a piece of property consisting of around
16.5 acres. The Adamy family also owned much of the property