search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Gordon v. Brown, Brewster and Torrence (7/10/92), 836 P 2d 354
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
GARY GORDON and MELINDA GORDON, )
) Supreme Court No. S-4351
v. ) Superior Court No.
) 4FA-84-1619 CIVIL
ANN STOLOFF BROWN, GARY BREWSTER )
and LESLIE TORRENCE, )
) O P I N I O N
___________________________________) [No. 3864 - July 10, 1992]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Niesje J. Steinkruger, Judge.
Appearances: James A. Parrish, Parrish
Law Office, APC, Fairbanks, for Appellants.
Fred G. Brown, Fairbanks, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
RABINOWITZ, Chief Justice.
MATTHEWS, Justice, dissenting.
This case concerns the interpretation of a University
Heights Subdivision covenant requiring a downhill landowner to
cut trees to preserve the view for the benefit of uphill
FACTS AND PROCEEDINGS
The University Heights Subdivision was developed by the
B.B.P. Corporation, and Joe Vogler and Doris Vogler, the
corporation's sole shareholders. In approximately 1972, the
original plat for the subdivision was set out. The subdivision
is currently composed of eight additions which have a total of 60
or 70 lots of two to three acres in size. At purchase, each lot
owner signed a deed containing twelve protective covenants. This
case concerns covenants 5 and 6.
In August 1984, Gary Brewster and Leslie Torrence
sought to compel Gary Gordon and Melinda Gordon to cut trees on
the Gordon property, based on restrictive covenants 5 and 6.
Brewster and Torrence (Torrence) owned Lot 22 in the University
Heights 6th addition, while the Gordons own Lot 10 in the
University Heights 5th addition. Lot 10 is situated downhill to
the south and west of Lot 22. At the time the parties bought
their respective parcels, they signed a copy of the restrictive
covenants, with which they agreed to comply. The relevant
restrictive covenants provide:
The following covenants are expressly agreed and
accepted as a contractual consideration for this property
transfer by all parties:
. . . .
5. To cut and destroy all Poplar,
Cottonwood, and Aspen trees.
6. To cut and or trim any tree or
growth which may, by virtue of its height or
its inclusion in a dense grove, unreasonably
obstruct the view from the dwelling on
another lot when that dwelling is situated in
the North 1/3 of its lot. The slope of the
lot from which the view is involved shall be
considered in that the view intended by this
covenant is approximately 90 degrees downhill
from the general contour elevation lines of
In an order dated July 3, 1986, Superior Court Judge
Blair found that the protective covenants applied to all
additions of the University Heights subdivision. In that same
order, the court denied both parties' motions for summary
judgment, reserving the issue of whether a recent attempt to
repeal the restrictive covenants requiring the removal of trees
The parties stipulated to a continuance of the case to
allow the superior court, and later this court, to resolve the
remaining issue concerning the repeal of the covenants in the
related case, B.B.P. Corporation v. Carroll, 760 P.2d 519 (Alaska
1988). In B.B.P Corporation, we held that a recent attempt to
repeal the covenants was invalid because proper election
procedures were not followed. Id. at 523. We further held that
covenant 5 was abandoned. Id. at 524. Viewing the facts in the
light most favorable to the developer, we observed that there
were clearly disputed facts as to the abandonment of covenant 6
and remanded for further findings. Id.
After the decision in B.B.P. Corporation, Torrence
moved again for summary judgment. Superior Court Judge
Steinkruger found that Torrence no longer owned the property and
therefore under the terms of the covenant, only Ann Stoloff
Brown, the new owner as of April 28, 1988, had standing to
enforce the covenant. Accordingly, the superior court entered
summary judgment against Torrence.
Brown was made a party plaintiff given her status as
the new owner of lot 22 and the litigation continued. Brown then
moved for summary judgment "so as to require Defendants GORDON to
cut or trim all trees which interfere with her view in looking
directly out on the horizontal plane at 90 degrees from the
elevation contour lines of the upper third of her lot." The
Gordons opposed the motion and filed a cross-motion, arguing that
Brown could not enforce the covenant because her house was not on
the north one-third of her lot. The Gordons also argued that
Brown's view from a horizontal plane was not obstructed and that
the view at 90 degrees downhill from the contour lines was not
After a bench trial, the superior court entered a
decision requiring Brown to bear the costs of establishing which
trees obstruct Brown's 90 degree downhill covenant view and
requiring the Gordons to cut those trees.
This appeal followed.
Was the covenant enforceable?
Covenant 6 allows the owner of an uphill lot to require
a downhill lot owner to cut trees which unreasonably obstruct the
view from the uphill owner's dwelling when the uphill owner's
dwelling is "situated in the North 1/3 of its lot." The superior
court stated that "the parties agree the dwelling is not entirely
in the north one-third of its lot."1 The superior court found,
despite the fact that Brown's house was not entirely in the
northern one-third of the lot, that the covenant was enforceable
because the house was built "primarily in the uphill portion or
the north one-third."2 The interpretation of covenant 6 is a
question of law in which the court may exercise its "independent
judgment to determine whether the relief granted by the superior
court was proper under the established facts." Lamoreux v.
Langlotz, 757 P.2d 584, 585 n.3 (Alaska 1988) (citing Walsh v.
Emerick, 611 P.2d 28, 30 (Alaska 1980)).
The Gordons ask the court to interpret "situated in the
North 1/3 of its lot"to mean situated entirely in the north one-
third. Alternatively, they argue that at least the viewing area
must be situated in the north one-third. The Gordons rely on
Webster's Dictionary for the following definition of "in":
contained or enclosed by, inside; within; as in the
room, in the envelope.
Webster's New Universal Unabridged Dictionary, (2d ed. 1983).
We find that the language of covenant 6 requiring the
downhill lot owner to cut trees obscuring the view from the
uphill dwelling "when that dwelling is situated in the north one-
third of its lot" is clear and unambiguous. In Lamoreux v.
Langlotz, this court summarized the principles applicable to the
construction of covenants as follows:
Covenants are construed to
effectuate the parties' intent. Clear and
unambiguous language should be accorded its
plain meaning. Because restrictions are in
derogation of the common law, they should not
be extended by implication and doubts should
be resolved in favor of the free use of land.
(Citations omitted.) 757 P.2d 584, 587 (Alaska 1988). See also
Lenhoff v. Birch Bay Real Estate, Inc., 587 P.2d 1087, 1089
(Wash. App. 1978)("in determining intent, clear and unambiguous
language will be given its manifest meaning. . . . Restrictions
being in derogation of the common-law right to use land for all
lawful purposes, will not be extended by implication to include
any use not clearly expressed. Doubts must be resolved in favor
of the free use of land."); Greenbrier-Cloverdale Homeowners
Ass'n v. Baca, 763 P.2d 1, 2 (Colo. App. 1988) ("A restrictive
covenant that is clear on its face should be enforced as written.
Any doubts as to the meaning of a covenant should be resolved
against restricting the use of the land and in favor of its free
and unrestricted use."); 5 Powell on Real Property 674 n.1
(1991) ("Words are given their plain meaning and unambiguous
covenants are enforced as written.") (citations omitted).
Applying these principles governing the interpretation of
covenants, we hold that the Brown dwelling is not "situated in
the north one-third of its lot"and, therefore, the covenant is
unenforceable in this instance.
Relying on B.B.P. Corporation, Brown contends that the
north one-third means the upper one-third of the lot in terms of
elevation. 760 P.2d at 521. Although it is undisputed that the
elevation of the portion of Brown's house in the middle one-third
of the lot is the same as the elevation of the portion in the
upper one third, we believe this argument is without merit. In
B.B.P. Corporation, this court introduced the "upper one-third"
language merely to summarize covenant 6. 760 P.2d at 521. We
neither reached the issue of whether "north one-third" means
acreage or elevation nor intended to introduce a new requirement
to covenant 6.
Therefore we agree with the superior court's conclusion
that the "north one-third"language applies to acreage and not to
elevation. The covenant requires that the house be situated in
the "north one-third"of the lot. In this context, north does
not describe elevation, but rather direction. The testimony of
expert witnesses Fitzgerald and Scarborough regarding surveyors'
interpretations of "north one-third" buttresses the trial
court's conclusion. Clearly, the house is not situated within
the north one-third of the lot's acreage.3 Thus, we reverse the
superior court's holding that this requirement was satisfied and
conclude that the covenant is not enforceable by Brown.4
Accordingly, the decision of the superior court is
MATTHEWS, Justice, dissenting.
Covenant 6 is not intended to be a setback regulation
preventing homeowners from building on the middle or southern
third of their lots. Instead, the covenant's reference to the
"north one-third" is meant to fix the point from which the
obligation to clear trees on downhill lots should be measured.
If one were to build a house entirely on the north one-third of a
lot, the measurement point would be set at an elevation
determined by the viewing area in the house. From this point, a
sighting downhill could be taken to determine what trees obstruct
the view. The same point can be determined by hypothesizing a
typical house built on the north one-third of a lot, even if no
house is built or if one is built outside the confines of the
To illustrate my disagreement with the majority opinion
I offer the following example. Assume that a house is built
entirely on the north one-third of a lot. The covenant should be
fully enforceable based on a measuring point established from the
viewing area in the house. Assume next that the owner of the
house decides to add on and builds a wing of the house onto the
middle one-third of the lot. Should the covenant become
unenforceable when this addition is built? If I understand the
rationale of the majority opinion correctly, the answer to this
question is that the covenant becomes unenforceable because the
dwelling is no longer within the "north one-third"of its lot,
even though the measuring point from which the obligation to
clear trees on downhill lots has not changed. This result is
correct only if the covenant was intended to operate as a setback
requirement. As that was manifestly not the purpose of the
covenant, the result in the hypothetical and the majority's
resolution of this case are at odds with the rule that a covenant
should be construed to accomplish its intended purpose. Lamoreux
v. Langlotz, 757 P.2d 584, 587 (Alaska 1988).
The trial court should determine what the sighting
point would be if Brown's house was entirely situated on the
northern one-third of her lot. Because such a point was not
determined, I would remand for that purpose. In all other
respects I would affirm the trial court's decision that the
covenant is enforceable.
1. At trial, the parties agreed that plaintiff's Exhibit 2,
drawn by expert witness Fitzgerald, was a reasonable
representation of the division of the lot into thirds.
2. In its Decision and Order, the superior court stated:
The question then arises as to
whether plaintiff Ann S. Brown's house is
"situated on the North one-third of its lot."
The parties agree the dwelling is not
entirely in the north one-third. The house
is slightly over half in the north one-third.
The "viewing area"of the house, which is
along the front of the house facing the
valley, is just outside of the north one-
third, and is in the middle one-third of the
lot. Applying a common meaning to the word
"situated", it means site, location or place.
See, e.g., Webster's New 20th Century
Dictionary, Unabridged 2nd Edition (1964),
Webster's New International Dictionary,
Unabridged 2nd Edition (1959), and Webster's
Third New International Dictionary,
This court finds a reasonable
interpretation of "situated" should be
applied to the facts set forth in Exhibit 2.
This court finds a reasonable interpretation
of "situated"as applied to the location of
the house depicted in Exhibit 2 is that
Brown's house is sufficiently located in the
north one-third of Lot 22 to invoke covenant
6. In other words, the house is situated
primarily, if not wholly, within the north
one-third of the lot. Reading the entire
instrument along with the surrounding
circumstances described by Mr. Vogler
convinces this court, by a preponderance of
the evidence, of an intent to provide uphill
land owners with a view, so long as they
build primarily in the uphill portion or the
north one-third or the upper one-third of
their lot. Ann Brown's house is primarily on
the north or upper one-third of her lot.
Accordingly, Ms. Brown is entitled to enforce
the covenant. Nevertheless, the court makes
a clear finding that the house if [sic.] not
entirely in the north one-third of her lot.
Should a higher court find that "situated in
the North one-third"means entirely within
the north one-third, then, Brown has no right
to enforce the covenant.
3. Alternatively, Brown submits that she is entitled to a
view from her den because it is undisputed that a portion of the
den is located within the north one-third of the lot, although
the viewing windows are in the middle one-third. This claim is
without merit because the covenant clearly requires the dwelling,
not just a portion of the viewing area, to be situated in the
north one-third of the lot.
4. The Gordons argue that the covenant is not enforceable
by Brown because she and the Gordons live in different additions
of the University West Subdivision. They also submit that the
trial court erred in admitting evidence of subjective intent,
particularly in the testimony of Joe Vogler. Both parties
challenge the superior court's interpretation of the view
provided by the covenant. Our holding that the house is not
situated in the north one-third of the lot makes it unnecessary
to address the other arguments which have been raised by the
parties in this appeal.