### 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: 

## Jbp13

## 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 inthe districtcourt, Lincoln County, holding that a garage built by the defendants violated certainrestrictive covenants and ordering the garage removed. The matter was tried by the court, sitting without a jury. The matter was presented tothe trialcourt on these agreed facts:

"That plaintiffs [Elmer Higdem and Verda Higdem] and defendants areneighbors and owners of adjacent lotsof realproperty inMountain View Park, a subdivision inLincoln County, Montana, which 

### is located approximately one-half 

### milenorth of Libby, Montana. Plaintiffs areowners of Lot 1, Block 6 of Mountain View Park. Defendants are owners of Lot 2, Block 6 of Mountain View Park. Plaintiffs1lotis bordered on two sidesby dedicated streets, in the rear by an alley and to the

### westby defendants' lot. Defendants have frontage on a dedicated street, an alleytothe 

### rear, plaintiffs tothe east and by McGlumphys, not parties to this action, tothe 

### west. That Lot 1and Lot 2 of Block 6 Mountain View Park owned by plaintiffs and defendants, respectively, are subject tocertain restrictive covenants of record atBook 109 Page 155 Book of Deeds atthe office of the Lincoln County Clerk and Recorder 

## * * 

## *.

"That on or,about April 24, 1974 defendants commenced construction on a garage additionon their lot, which garage is 34 feetwide, 38 feet deep and itsmaximum height willbe approximately 15 feet 9 inches. The garage addition 

### willcontain three garage doors and 

### willbe attached to the dwelling located on the lot. Allof the pertinent lots are 50 feetwide by 125 feetdeep. "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 atone 

### time inquired among neighbors intothe efficacy of performing occasional small mechanical jobs, such astune-ups, within thegarage structure and was informed by neighbors that they would object to such a use of the said garage structure. "That the garage inquestion does not encroach upon property belonging tothe plaintiff." The restrictive covenants referred tointhe agreed statement of facts inpertinent part state: "1. The purchasers, astothe said lotsof land hereby conveyed, and with intent tobind all persons inwhom the said lotshereby conveyed shall for the time being be vested, but not so as tobe personally liableunder thiscovenant 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 toerect any building other than a singledetached dwelling house, either with or without a garage or other like and necessary outbuilding, upon the said lotsof land hereby conveyed, or any part thereof. "b. Not toerect or suffer tobe erected upon said lotsof land hereby conveyed any dwelling house ata cost of less than $10,000.00, such cost tobe calculated upon the net cost of labor and material alone, estimated atprices now current. "c. Not touse any building tobe erected upon said lotof land hereby conveyed or any part thereof, for any purpose other than those incident tothe use of a private dwelling house only; this provision being intended toprohibit the use of any housing for livestock or poultry, or for any commercial purpose, provided, however, that nothing herein is intended toprohibit use of any such building for private workshops, greenhouses or other likepurposes. " 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 atthat timehad 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 compactstationwagons, two pickups, a Suzuki motorcycle, and two trailHondas; 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 essentiallythe same asher husband. Plaintiff Elmer Higdem, a local automobile dealer, testified that he and his family had lived in the addition over ten years; that shortlyafter defendants moved inBillWhitham told him of his intent tobuild 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 tothe garage, he would not have objected toa two stallgarage 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 inquestion. 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 todefendant and then concluded: "1. The garage addition is inviolation of the restrictive covenants inthat 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 areinviolation of the restrictive covenants. "2. That said construction apparently 

### willnot result inadversely affecting the water system. "3. That said garage addition does not violateany zoning regulations or City Ordinances, since none arenow inexistence. "4. That defendants should remove said garage addition from the premises due todefendants1 violating therestrictive 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 inconstruing the language of the restrictive covenants so astoprohibit 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 statethe 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 thiswas denied,by the trialcourt. 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 areinviolation of the 

### restrictivecovenants." However, no reference 

### ismade to a specific covenant and none of the covenants relate toconstruction, existence, or sizeof any buildings on the land. Covenant "c" only relates tothe use of the land and the use of the structures. The only language in covenant "a" which inany way might relate to size, albeit indirectly, 

### is the phrase "necessary outbuildings". Here, 

### we areconsidering a garage. We note the term"necessary" does not proceed the term "garage", but rather the

cerm "outbuilding". Assuming the trialcourt superimposed the term "necessary" upon the new garage, 

### we look toa recent decision a£ thisCourt, Timmerman v. Gabriel, 155Mont. 294, 298, 470 P.2d 528, tointerpret the

### term "necessary" ina restrictive covenant. In Timmerman the Court was required todetermine whether a "doublewide" trailer fellwithin themeaning of a covenant prohibiting trailers. The Court said: "The construction of covenants indeeds toproperty isnot unlike the construction of contracts. "Section 13-710, R.C.M. 1947, provides: "'The words of a contract 

### are tobe understood in their ordinary and popular sense, rather than according totheir strictlegal meaning, unless used by the parties ina technical sense, orunless a special meaning is given tothem by usage, inwhich case the lattermust 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" tomean convenient tothedwelling and 

### we sohold here. Granger v. Boulls, 21Wash.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 tothe house and is inconformity with the aesthetic qualityof 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 

### iswhether the court erred inconstruing the language of therestrictivecovenants. The trialcourt erred inordering the garage removed. This Court inDunphy v. Anaconda Co., 151Mont. 76, 80, 438 P.2d 660, spoke tothe rules of statutory construction that

areapplicable here: "Althougn various rules of statutory constructionhave been developed and employed indiverse cases that have come before thiscourt inthe past, we consider the following tobe applicable to the instant case indetermining legislative intent. The intention of the Legislaturemust firstbe determined from theplain meaning of the words used, and if interpretation of the statute can be so determined, the courtsmay not go further and apply any other means of interpretation. [Citing cases.] Where the language of a statute isplain, unambiguous, direct and certain, the statute speaks for itself and there 

### isnothing left for the court toconstrue. [Citing cases.] The function of the court is simply to ascertain and declare what interms 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 toconstruing the language of the restrictive covenants here, 

### we hold that where the words areplain, unambiguous, direct and certain and admit of but one meaning, then 

### it 

### is the duty of thisCourt todeclare what the 

### termsof the covenants contain and not toinsert 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 atleast 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, ina restricted area, toaccommodate his business operations. While Moore is close tothe instant case factwise, there was a setback regulation and a space requirement that takes Moore out of the fact situation here. The overriding policy of individual expression infreeandreasonable 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, 21Wash.2d 597,

Three basic rules may be gleaned from these cases: (1)that restrictive covenants be strictlyconstrued, (2) that ambiguities be resolved infavor of freeuse 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 laterdeveloping. The judgment of the trial court is reversed and the

cause returned tothe districtcourt with directions toenter judgment for defendants.



# ................................ Justices

Mr. Chief Justice James T. Harrison did not participate inthis cause.Mr. JusticeWesley Castles speciallyconcurring: I concur inthe result here but do not believe 

### we need beyond the covenant language find that the trial court's conclusions are not correct.

Justice