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Walters v. Colford

Supreme Court of Nebraska

July 28, 2017

Gary J. Walters et al., Appellants,
v.
Steven W. Colford et al., Appellees.

         1. 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.

         2. __: __ . 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 evidence.

         3. 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 for determination.

         4. 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.

         5. 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 less favor.

         9. __ . Because implied restrictive covenants mandate relaxation of the writing requirement, courts are generally reluctant and cautious to conclude implied restrictive covenants exist.

         10. __ . 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 implication.

         11. Property: Boundaries. Whether a general plan or scheme of development exists and the scope and boundary of that plan are questions of fact.

         12. 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.

         13. 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.

         14. 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.

         [297 Neb. 304] 15. Property: Boundaries. Where a development is subdivided or platted in separate phases, each phase constitutes its own separate plan of development.

         16. 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.

         17. __ .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.

         18. __ . 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 restricted.

         19. __ . 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.

         Appeal from the District Court for Butler County: Mary C. Gilbride, Judge. Affirmed.

          Jeffrey A. Silver for appellants.

          Todd B. Vetter and Luke P. Henderson, of Fitzgerald, Vetter, Temple & Bartell, for appellees Steven W. Colford and Sara J. Colford.

          Robert J. Bierbower for appellee Daniel F. Adamy.

          Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.

          Wright, J.

         I. NATURE OF CASE

         At 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.

         II. BACKGROUND

         1. Procedural Background

         The 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).

         The 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.

         2. Factual Background

         The plaintiffs are neighbors to the Colfords. The plaintiffs live in a platted subdivision known as the Adamy subdivision.

         [297 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 ...


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