No. 12873 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

ELMER HIGDEM and VERDA HIGDEM, 

husband and wife, 

Plaintiffs and Respondents, 

WILLIAM R. WHITHAM and JUNG YUL WHITHAM, 

husband and wife, 

Defendants and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant : 

McGarvey and Moore, Kalispell, Montana 

James D. Moore argued, Kalispell, Montana 

For Respondents: 

Fennessy, Crocker and Harman, Libby, Montana 

David W. Harman argued, Libby, Montana 

Submitted: May 9, 1975 

Decided: Jbp 13 19% 

Filed : 1.. . 2 , lJj'L ' 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an appeal by defendants William R. Whitham and 

Jung Yul Whitham from an order and judgment entered in the district court, Lincoln County, holding that a garage built by the 

defendants violated certain restrictive covenants and ordering 

the garage removed. The matter was tried by the court, sitting 

without a jury. 

The matter was presented to the trial court on these 

agreed facts: 

"That plaintiffs [Elmer Higdem and Verda Higdem] 

and defendants are neighbors and owners of adjacent lots of real property in Mountain View Park, 

a subdivision in Lincoln County, Montana, which 

is located approximately one-half mile north of 

Libby, Montana. Plaintiffs are owners of Lot 1, 

Block 6 of Mountain View Park. Defendants are 

owners of Lot 2, Block 6 of Mountain View Park. 

Plaintiffs1 lot is bordered on two sides by dedicated streets, in the rear by an alley and to 

the west by defendants' lot. Defendants have 

frontage on a dedicated street, an alley to the 

rear, plaintiffs to the east and by McGlumphys, 

not parties to this action, to the west. That 

Lot 1 and Lot 2 of Block 6 Mountain View Park 

owned by plaintiffs and defendants, respectively, 

are subject to certain restrictive covenants of 

record at Book 109 Page 155 Book of Deeds at the 

office of the Lincoln County Clerk and Recorder * * *. 

"That on or, about April 24, 1974 defendants commenced construction on a garage addition on their 

lot, which garage is 34 feet wide, 38 feet deep 

and its maximum height will be approximately 15 

feet 9 inches. The garage addition will contain 

three garage doors and will be attached to the 

dwelling located on the lot. All of the pertinent 

lots are 50 feet wide by 125 feet deep. 

"That the plaintiffs and defendants share a well 

system, that the well system is enclosed above the 

surface of the ground; that the water source is 

approximately forty-two (42') beneath the surface 

of the ground. 

"That the defendants at one time inquired among 

neighbors into the efficacy of performing occasional 

small mechanical jobs, such as tune-ups, within the 
garage structure and was informed by neighbors 

that they would object to such a use of the said 

garage structure. 

"That the garage in question does not encroach 

upon property belonging to the plaintiff." 

The restrictive covenants referred to in the agreed 

statement of facts in pertinent part state: 

"1. The purchasers, as to the said lots of land 

hereby conveyed, and with intent to bind all 

persons in whom the said lots hereby conveyed 

shall for the time being be vested, but not so as 

to be personally liable under this covenant after 

having parted with the said lots, for themselves 

and their heirs and assigns hereby covenant with 

the sellers and their assigns as follows: 

"a. Not to erect any building other than a 

single detached dwelling house, either with or 

without a garage or other like and necessary outbuilding, upon the said lots of land hereby conveyed, 

or any part thereof. 

"b. Not to erect or suffer to be erected upon 

said lots of land hereby conveyed any dwelling house 

at a cost of less than $10,000.00, such cost to be 

calculated upon the net cost of labor and material 

alone, estimated at prices now current. 

"c. Not to use any building to be erected upon 

said lot of land hereby conveyed or any part thereof, 

for any purpose other than those incident to the use 

of a private dwelling house only; this provision being 

intended to prohibit the use of any housing for 

livestock or poultry, or for any commercial purpose, provided, 

however, that nothing herein is intended to prohibit 

use of any such building for private workshops, greenhouses or other like purposes. " 

With the agreed statement of facts and covenants before 

it, the trial court heard the testimony of plaintiffs and defendants and that of one Glenn Mueller, a neighbor. 

Defendant William Whitham testified that he had purchased 

the property several years ago and at that time had considered 

taking odd jobs when he got the garage built, but he encountered 

such opposition from neighbors that he abandoned that idea and 

had so informed his neighbors; that the one car garage that came 

with the house was inadequate for his use and that of his family, 

a wife and three children, who between them owned three compact 
station wagons, two pickups, a Suzuki motorcycle, and two 

trail Hondas; that one of the reasons for building a large 

garage was to furnish storage for the vehicles, tools, lawn equipment, extra tires and firewood; that after building the garage 

he converted the old one car garage into a den. Whitham's wife 

testified essentially the same as her husband. 

Plaintiff Elmer Higdem, a local automobile dealer, testified that he and his family had lived in the addition over ten 

years; that shortly after defendants moved in Bill Whitham told 

him of his intent to build a garage and he might do odd jobs in 

it as a mechanic; that he told Whitham he would object to any 

such commercial work; that as to the garage, he would not have 

objected to a two stall garage but when he saw the size of the 

actual garage defendant was building, he objected and filed a 

complaint on the basis that the building violated the restrictive 

covenants, and interfered. with his easement of light and air. 

Plaintiff Verda Higdemls testimony concerned an exhibit she had 

prepared of the plats in question. 

The testimony of Mueller, a neighbor, concerned the fact 

that defendant had earlier discussed building a new garage with 

him and that he was considering taking small mechanical jobs at 

his home. 

The trial court made nine findings of fact, none harmful 

to defendant and then concluded: 

"1. The garage addition is in violation of the 

restrictive covenants in that defendants already 

had an attached garage on said property; and is 

not a necessary outbuilding. 

"la. That the additional building, its size and 

the purpose intended are in violation of the 

restrictive covenants. 

"2. That said construction apparently will not 

result in adversely affecting the water system. 

"3. That said garage addition does not violate 
any zoning regulations or City Ordinances, since 

none are now in existence. 

"4. That defendants should remove said garage 

addition from the premises due to defendants1 

violating the restrictive covenants. 

"5. Plaintiffs are entitled to their costs." 

Defendants appeal and present two issues for review: 

1. Are the district court's conclusions of law supported by the findings of fact? 

2. Did the district court err in construing the language 

of the restrictive covenants so as to prohibit the construction 

of defendants' garage? 

Regarding issue No. 1, we find the conclusions of law, if 

that they are, are not supported by the court's findings of fact. 

~onclusions 4 and 5 simply state the defendants should remove the 

garage and pay plaintiffs their costs. These, we believe, are 

remedies, not proper conclusions. 

After the trial court's decision, defendants moved for a 

new trial, but this was denied,by the trial court. Under Montana's 

Rules of Civil Procedure, the proper procedure would have been to 

proceed under Rule 52 (b) , M.R.Civ.P. 

The trial court's findings and conclusions are inconsistent. 

From the court's conclusions it would appear the order for removal 

of the garage must have been based on its conclusion la: 

"That the additional building, its size and the 

purpose intended are in violation of the restrictive covenants." 

However, no reference is made to a specific covenant and none of 

the covenants relate to construction, existence, or size of any 

buildings on the land. Covenant "c" only relates to the use of 

the land and the use of the structures. The only language in 

covenant "a" which in any way might relate to size, albeit indirectly, is the phrase "necessary outbuildings". 

Here, we are considering a garage. We note the term 
"necessary" does not proceed the term "garage", but rather the 

cerm "outbuilding". Assuming the trial court superimposed the 

term "necessary" upon the new garage, we look to a recent decision 

a£ this Court, Timmerman v. Gabriel, 155 Mont. 294, 298, 470 P.2d 

528, to interpret the term "necessary" in a restrictive covenant. 

In Timmerman the Court was required to determine whether a "doublewide" trailer fell within the meaning of a covenant prohibiting 

trailers. The Court said: 

"The construction of covenants in deeds to property is not unlike the construction of contracts. 

"Section 13-710, R.C.M. 1947, provides: 

"'The words of a contract are to be understood in 

their ordinary and popular sense, rather than 

according to their strict legal meaning, unless 

used by the parties in a technical sense, or unless a special meaning is given to them by usage, 

in which case the latter must be followed."' 

Montana does not have case authority interpreting the term 

"necessary outbuildings" within the context of a restrictive covenant, but we find a number of cases throughout other jurisdictions 

construing the word "necessary" to mean convenient to the dwelling 

and we so hold here. Granger v. Boulls, 21 Wash.2d 597, 152 P.2d 

325; Thompson v. Pest Control Comm., (La. 1954), 75 S.2d 406; King 

v. Kugler, 17 Cal.Rptr. 504; 92 ALR2d 872. Here, the new garage 

is convenient to the house and is in conformity with the aesthetic 

quality of the area. The court's conclusion the garage must be 

torn down and removed is not supported by any of its findings. 

The second issue is whether the court erred in construing 

the language of the restrictive covenants. The trial court erred 

in ordering the garage removed. 

This Court in Dunphy v. Anaconda Co., 151 Mont. 76, 80, 

438 P.2d 660, spoke to the rules of statutory construction that 

are applicable here: 

"Althougn various rules of statutory construction 
have been developed and employed in diverse 

cases that have come before this court in the 

past, we consider the following to be applicable 

to the instant case in determining legislative 

intent. The intention of the Legislature must 

first be determined from the plain meaning of 

the words used, and if interpretation of the 

statute can be so determined, the courts may 

not go further and apply any other means of interpretation. [Citing cases.] Where the language of 

a statute is plain, unambiguous, direct and 

certain, the statute speaks for itself and there 

is nothing left for the court to construe. [Citing 

cases.] The function of the court is simply to 

ascertain and declare what in terms or in substance is contained in the statute and not to insert 

what has been omitted. [Citing cases.] In short, 

it is simply the duty of the Supreme Court to 

construe the law as it finds it. [Citing cases.] " 

Applying the above principles to construing the language of the 

restrictive covenants here, we hold that where the words are plain, 

unambiguous, direct and certain and admit of but one meaning, then 

it is the duty of this Court to declare what the terms of the covenants contain and not to insert a limitation not contained therein. 

In their brief and on oral argument, plaintiffs argued in 

the 

support of/trial court's conclusion of law la, which refers to 

the size of the garage. They rely on case authority to support 

their position, and cite three cases. Hansen v. Facione, 294 Mich. 

473, 293 N.W. 723; Moore v. White, (Okla. 1958), 323 P.2d 352; 

Bruce v. McClees, 110 N.J.E. 92, 158 A. 849. We find these cases 

differ factually from the instant case. In Bruce the covenant had 

a set back proviso of at least 100 feet from the street and much 

of the case turned on interpreting the proviso. Hansen involved 

a defendant who owned and operated two five ton trucks for hauling 

rubbish and he built a 40 foot by 50 foot garage, in a restricted 

area, to accommodate his business operations. While Moore is 

close to the instant case factwise, there was a set back regulation and a space requirement that takes Moore out of the fact situation here. 

The overriding policy of individual expression in free and 
reasonable land use dictates that restrictions should not be 

aided or extended by implication or enlarged by construction. 

Sporn v. Overholt, 175 Kan. 197, 262 P.2d 828; Flaks v. Wichman, 

128 Col. 45, 260 P.2d 737; Granger v. Boulls, 21 Wash.2d 597, 

Three basic rules may be gleaned from these cases: 

(1) that restrictive covenants be strictly construed, 

(2) that ambiguities be resolved in favor of free use 

of property, and 

(3) that the district court should not have broadly 

interpreted and imposed these restrictive covenants in terms 

of what the parties would have desired had they initially been 

confronted with questions later developing. 

The judgment of the trial court is reversed and the 

cause returned to the district court with directions to enter 

judgment for defendants. 

................................ 

Justices 

Mr. Chief Justice James T. Harrison did not participate 

in this cause. 
Mr. Justice Wesley Castles specially concurring: 

I concur in the result here but do not believe we 

need beyond the covenant language find that the trial 

court's conclusions are not correct. 

Justice