# FILED

Novemb er 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE

EDWIN HAROLD BURNETTand wife, ) CAROL HOFFMAN BU RNETT, ) ) Plaintiff s/ Appellees, ) Rutherford Chancery No. 96CV-113 ) v. ) ) Appeal No. 01A01-9610-CH-00452 CHARLES HAMBY, ) ) Defend ant/Appe

llant, )

)

APPEAL FROM THE CHANCERY COURT OF RUTHERFORD COUN TY AT MURFREESBORO, TENNESSEE

THE HONORABLE ROB ERT E. CORLEW II I, CHANCEL

LOR

For the P laintiff s/Appellees: For the D efenda nt/Appell ant: Darrell L. Sc arlett Lar ry K. Tolber

t Murfreesboro, Tennessee Murfreesboro, Tennessee C. Tracey Parks Gallatin, Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCURS: W. FRANK CR

AWFORD, P. J., W.S.

AL AN E . HI GHE RS, J

.OPINION

This case involves a

restrictive covenant in a subdivision. The Appellant sought to construct

a “driveway” across a residential subdivision lot to provide

ingress a nd egres s to prope

rty located outside the subdivision. The tria l court fo und that the proposed drivew ay would violate a restrictive covenant forbiddi ng the use

of any sub division lot

for any p urpose not residen

tial, and permane ntly enjoined construction of the

drivewa y. We af firm. El Rancho Estates is a residential subdivision in Rutherfor d Coun ty, Tennessee. Sanford Drive is the only

road thr ough the su

bdivision a

nd conne cts on one

end of the

subdivisio n to Compton Road and on the other end to Betty Ford Road. The subdivision contains twenty-three lots, three of which have not had houses built on them. The lots range in size from two-acre lots to one containing six or seven acres. Appellees Edwin and Carol Burne tt (“the Burnetts”) own Lot 12. Appellant Charles H amby (“H amby”) o wns appr oxim a tely one hundred acres of land adjacent to El Ran cho E states. He has a home on this land and uses part of it for agricultura l purposes . Hamby’s home is accessed by Lakebrook Drive , a public road which passes through the Lakebrook

subdivisio n. In yea

rs prior t o the insta

nt litig ation, Ham by had his l and surve yed to determine its potential as a residential development. He also spoke to residents of El Rancho Estates in attempt s to gain a ccess a cross their

lots to his property, explaining that he wanted a more aesthet ic route to his house. His efforts were unsuccessful. Hamby f inally pu rchas ed Lot 13, the lot adj acent to the B urnetts’ home. He then contracted to sell the lot, reserving a f ifty-foot-wide

easemen t from Sa

nford Dr ive to his p

roperty . The ea sement ta kes up .65 acres o f Lot 13. T his easement is located next to the Burnetts’ property. Hamby indicated that he planned to use the easement for a “driveway” to his home. El Rancho Es tates i s subject t o several restrictive covenants. The re levant restrictive

covena nts state, in pertine

nt part: 1. No lot shall be used e xcept fo r reside ntial purp oses. * * * 3. No objectionable nor offensive trade or business of any kind shall be carried on upon any lot, nor shall anything be done the reon which may be or become a nuisance or annoyance to the neighborhood. * * * 5. No lot shall be

resubdivided into s maller lots and not more than one residence may be er ected or maintained on any lo t.

* * * 8. A perpetual easement or right-of-way f or underground installation and maintenance of telephone lines, electri c lines or cables, under the rear five (5) feet of each lot and the side five (5) feet of each lot is reserv ed in the g

rantor o n all lots.2

9. These

covena nts are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five (25) yea rs from the date these covenants are reco rded, after which time said covenants shall be automatic ally extended for successive periods of ten (10) years unless aninstrument signed by a m ajorit

y of the then owner s of the lo ts has bee n recor ded, agr eeing to change the said c ovenantsin whole o r in part. These restrictive covenants were in ef fect when Hamby purchased Lot 13. The Burnetts f

iled suit in

Chancer y Court, a

lleging tha

t the prop osed “dr

iveway”would violate the appli cable r

estricti ve cove

nants and would

constitute a nuisance. They obtained a temporary restraining orde r prohibiting Hamby from constructing a “roadway” acr oss Lot 13. A hearing was later held to determine if the injunction should be made per manent. At the h ear ing, several residents testified that the proposed “driveway” would constitute a nuisance and viola

te the restrictive covenants. Many testified that they feare d Hamby would develop his land as a residential subdivision and use the “driveway” as a r oad to the new subd ivision

. Several witnesses testified to past conversations with Hamby in which he discussed his plan s t o develop his property. In addition, the Burnetts introduc ed int o evidence recently adopted amendments to the restrictive covena

nts, signe d by a majo

rity of the re sidents. One of these amendments provided, “No lot shall be utilized to provide access to any property not located in El Rancho Estates Subdivision and subject to

the Restr ic tive Covenan ts contained in Deed Book 161, page 361 of the Register’s Office of Rutherford County, Tennessee or this additional restriction.” The Burnetts’ counse l informed the trial court that the amendments would be recorde d the day following the hearing. Hamby testified that he had no plans to develop his land or use the e asement

to build a road for any use o ther tha

n a perso nal drive

way. He admitted t

hat he ha d told some

peopl e that, as “a worst case scenario,” he might eventually have to deve lop his land into a residential subdivision of single-residence, five-a

cre lots . Hamby sta

ted that “[t]here [would] never be a public road put there.” He was then asked: Q: Are you willing then to have this Court order that you may never use this road or right-of-way for anything other than acc ess just to your house? A: I’ll not do

that. Q: Okay. You don’t

want to limi

t it to not be

ing able to use by others when you might sell lots off, do you? A: Well, never is a long time.3

Q: But you don’t want to make that limitation, do you? A: No, sir. Hamby admitted t

hat the c ounty required a width of fifty feet for a public ro ad, prec

isely the width of his ease ment, but in sisted tha

t he did not

plan to bui ld such a road. He testified that he did not

necessa rily intend to

use the entire fifty feet for a roadw ay, that he intended to construct a drive with just enough room for

two carsto pass ea

ch other . He state d that a f ifty-foo t easeme

nt would allow him enough r oom to devi ate the d

riveway ’s cours e around trees and to slope the drive in such a way as to minimiz e any run -off pr oblems fr om rainfa ll. After hearing, the trial court issued an order conver ting the tempora

ry restr aining or der into

a permanent injunction. The order enjoined Hamby “from c onstructing a roadway over and across L ot13 of El Rancho Estates Subdivision.” The trial court also ruled that the amen dments to th e restrictive covena

nts would “ only take effect at the expiration of the ten (10) year renewal periods, withthe next renewal period being J uly 2, 2000 .” The tr ial cour t issued a n Opinion, in which it explained the basis for the ruling on the injunctive relief:

A literal in

terpre tation of t he cove nants indicate to the Court that the setting aside of a fift

y foot ea sement a

cross the Defendant’s [Hamby’s] lot and constructing a roadwa y thereo n is contr

ary to th e restri c tive covenants. The provisions of paragraph one of the restrictive covenants appear to be very restrictive. While a number of activities may be encompa ssed by the term “residential purposes” and while this term may not be extremely well defined, it is appa rent to the Court that utilization of the lot as a roadway for ingress and egre ss to lan d outsi de of the subdivision is not embraced within the term “residential purposes.” . . . * * * It is im p ossible, o f course , for the framer s of restr

ictive co venants t

o state withspecificity ever

y possible scenar io which may subse quently a rise. Non etheles s, it appears to the Court in the present cause that the restrictive covena n ts are significa ntly specific in their requirement that the lots in question in this subdivision should be used o nly in the tr

aditiona l manner in which r

esidentia l su bdivision l ots are used. These restrictions, then, appear to preclude the use of

a reside ntial lot, or portion t hereof, for purposes of an ease ment, roadway, or access way to other propert y notbound by th

e restri ctions, separate and apart from the re sidence located on that lot. Thus it appears to the Court that the terms of the restrictive covenant s ar e sufficie ntly specific to prevent the construction of the roa dway planned by the Defend ant. The trial court also found that the roadway could become an annoyanc e to the other residents of the subdivision. It deter

mined tha t the eigh th restri ctive co venant, while not expressly forbidding other

easeme nts, made it “appare nt cert ainly that no easement for further streets or ar eas of ingress and egress are contemplated within the restrictive covenants.” I n addition, the trial court found that the4

easeme nt, while not a

technic al resub division of Lot 13, wou

ld violate th e spiri t of the fi fth restrictive covenant, whi ch i t found indicated “that each lot should be used together with the remaining portions of that lot, and for a common purpose with the balance of the lot.” As to the recent

amendme

nt to the re strictive

covena nts, the tr ial cour t held that the proper interpretation of the nin

th restrictive covenant

was that, after the initial twenty-five years from the date of their filing, the covenants coul d on ly be modified at the end of each successive ten- year period. This meant that the recent amendme

nts reco rded by th e Burnett s would not

become effective until July 2, 200 0, and the n only if the same la

ndowner s still owned the lots, or if a new majority of landowne rs signed the amen dments. Hamby now appe als to this Co urt, arguing that t

he pro posed “d

riveway ” would c onstitute

a “residential purpose,” would not be a nuisance or a nnoyance, would not be a resubdivision of the lot, and would not v iolate the utilities easement. The Burnetts appeal the court’s ruling that the recent amendments to the restrictive covenants will not take ef fect until July 2, 2000. Our review of

this case is de novo upon the record with a presumption of correctness of the findings of fact by the trial court. A bs ent error of law, the trial court’s decision will be af firmed, unless the evidence preponderates aga inst the factua l findings. Tenn. R. A pp. P. 13(d

); see also Beacon Hills Homeow ners Ass’n v . Palmer Pr

operties , Inc . , 91 1 S.W.2d 736, 737 (Tenn. App. 1995). Restrictive covena nts are v alid in Te

nnessee but, as li mitati ons on the unrestricted enjoyment of land, they are not

favored. Wall

er v. Thomas , 545 S.W.2d 745, 747 (Tenn. App. 1976). Restrictive covenants should be strictly construed, with any ambiguities resolved against the restriction. Id. Restricti ve cove nants “a re to be interpreted as any other writing, i.e. , in construing document s words mus t be given t heir ordinary and customary meaning and not a strained or unnatural interpretation.” Aldridge v. Morgan , 912 S.W.2d 151, 153 (Tenn. App. 1995). Finally, “once the intention of the parties is ascertained, the covenant will be enf orced, provided

it serves a legitimate purpose and does not constitute a nuisance per se.” Waller , 545 S.W.2d at 747. Several Tennessee decisions are instructive on the issue of whether the proposed “driveway” would violate the first restrictive covenant, which states that “[n]o lot shall be use d except for5

residential purposes .” The f irst is Laughlin v. Wagner , 146 Tenn. 647 (1922). In Laughlin , a restrictive covenant limited the use of the lots on one street, Belvedere Street, to residential purposes . Id. at 649-50. Belvedere intersected with Madison Avenue, which was not subject to the Belvedere restrictive covenant. At

the corner of Belvedere

and Madis on, Lot 34 f

ronted f ifty feet on Belvedere and fifty feet on Madison, forming a n “L,” wi th another lot containing a drug store situated between the legs of the “L.” A mercantile store was on one leg of the “L,”fronting onto Madison, and the other leg, fronting onto Belvedere, was undeveloped, exc ept for a small metal garage. The owner of the lot planned to extend the drug stor e six feet onto the Belvedere side of the lot and pave the remainder

of the Belvede

re side, presuma

bly as an e

ntrance to both the mercantile building and the drug store. Id. at 649-52. The trial court had issued an injunction prohibiting the implementation of this plan. Id. at 652-53. The Tennessee Supreme Court found that the Belvedere side of the lot, except

for a portion extending from Madison to “a point opposite the extension of the west [back] boundary line of that portion of the lot which fronts on Madison avenue,” was subject to the restrictive covena nt. See id. at 656. The Cour t ruled that the restrictive covenant prevented the Belvede re side of the lot from being used for any purpose incident to a commercial use, including the construction of a driveway into an adjacent commercial lot outside the subdivision. Id. at 657-59. The Court permitted the lot to be used for purposes ot herthan the construction of a residence, so long as the use wa s incident to a residential purpose: “[I]f there be no building at all, [the lot] coul d be use d for purposes consistent with and incident to its use for residential purposes.” Id. at 658. The Court concluded: From this interpretation it follows that the Belvedere side of this lot could not b e made use

of in such

a way as that the ma

nifest pu rpose would be to se

rve th e business houses adjacent to it. For example, it could not be used as affording an intentional passageway or entra nce into the business house. Any structure, whether strictly a house or

not, s uch as a concrete driveway, whic h devotes the use of the propert y to the ca

rrying on of a business, woul d be viola tiv e o f this clause, but the use of the lot for decorative purposes, such as flower beds or as a walkway on the lot itself, would not violate the manifest intent and purpose of this clause. In other words, any use of this lot which might be reasonably incident

to its use for res idential p

urposes i s permissi

ble, but it i s not permis sible to put the lot into service as an inc ident to the

business houses on th

e adjac ent portio n of the lo t. Id. at 658-59.6

Hamby argues that his proposed driveway is incident to a res i dential purpose, t hat it is me

rely intended to be a driveway or access road a llowing him ingress to and egress from his home. This issue is addressed in Lapray v . Smith , 804 S.W.2d 87 (Tenn. App. 1990). In Lapray , the defendant owneda lot in a subdivision which had restrictive covenants forbidding use of the lots for anything othertha n single- family hom es. The r estricti ve cove

nants exp ressly fo rbade th eir use f or mobile homes. Id. at 88-89. The defendant’s parents owned land adja cent to the subdivision. They allowed the defendant

to set up a mobile home on this land. The defendant then created an opening in the curb around his lot in the subdivision and used it to gain a

ccess to his reside

nce, the mobile home. Id. He argu ed that, under Laughlin , he was u sing the lo t in confo rmity with t

he restr ictive co venants because he was using

it as a dri veway a

nd front y ard to a single-family residence, the mobile home. Id. at 89. The Court in Lapray disagre ed, stating that “ Laughlin does not support the Defendant’s implied argumen

t t hat resid ential use

of unres tricted p

roperty is the only

important

concer n in determining whether such unrestricted property may be use d in conjunction with a dj oining restricted property.” Id. The Court found that the defendant’s mobile home did n ot confo rm with the restr ictive co venants and that, consequently, use of the subdivision’s lot as a driveway to that “reside nce” al so violate d the cove nants: Just as the Laughlin Court did not allow re stricted propert y to be used

in conjunction withadjoining unrestrictedand non- conform ing prope rty, so the present Defendant must not be per

mitted to su

bvert the plain re striction s of the W hite Oak Covenant

by using Lot26 merel

y as a ‘f ront yar d’ to unrestricted and non-conforming adjoining property. Id. at 90. Therefore, even if a restricted lot

is used to b enefit a

n adjoinin g reside

nce, tha t use still

m ay be disallowed if the adjoining residence does not otherwise conform with all the re strictions placed o n the res tricted l ot. Hamby argues that Lapray is distinguishable in that the defendant in that case did not have the ability to make the adjoining property conform, because he was not the owner. Hamby notes that he has the ability to conform to the restrictive covenants. Hamby points to the following language in Lapray : “Perha

ps, if the Defend ant had both the aut hority an d the willingness tore strict the propert y outside the subdivis ion to the s ame extent as Lot 26 is restricted, a differe nt questio n would be presented.” Lapray , 804 S.W.2d at 90. After di scussing a n Ohio ca se which

held that a restricted lot could be used to reach

adjoining land if tha

t adjoining

land wer e subjec t to the sam

e restri ctions,7

Lapray notes: The Defend ant in the instant ca se has not

subje cte d the property adjoining Lot 26 to the same restrictions that apply within White Oak Subdivision. Indeed, even if the Defe ndant we re willing to do so , he d oes not have the power to subject the adjoining property to such restrictions, since he does not own the adjoining property, but only ha s a revoc able beneficial interest in it. Id. Hamby co ntends tha

t, because he is able and willing to restrict his property to development as a residential neighborhood, he should be able to build his driveway. The Burnetts observe that the statements relied on by Hamby in Lapray are dicta. It is also notewor thy that Ha

mby has not

yet plac ed his pro

pertyunder the same restrictive covenants as El Rancho Es tates. Another instructive case is unpublished, Proffitt v . Sull ivan , C.A. No. 27, 1986 WL 2642 (Tenn. App. Feb. 28, 1986). In Proffitt , this Court uphe ld an injunction against building a road across two lots in a subdivision which restricted the use of its lots toresidential uses, even though the road would merely

serve to join two sub divisions. The Court reasone d that usin g lots as a connecting street

could not be considered a residential use, and that such a stree t would destroy the privacy and security of the restricted subdivision. Proffitt , 1986 WL 2642, at *1-2. This reasoning is persuasive. Hamby asserts that he d oes not p lan to build an acce ss road or

connec ting stree

t, just a driveway. Howeve

r, se ver al witnesses testified that Hamby had told them he might build a subdivision on his tract of land. Hamby admitted that he had said that he might do so as “a wors t

case scenario.” Coincidentally, the easement on lot 13 is fifty feet wide, the width required by the county for publi c roads. Although H amby testi fied th at his “drivew ay” woul d never b e a public road, he refused to agree to let the court fa shion an order prohibiting the use of the easement

for such

a p urpose. Fro m this evidence, the trial court could reasonably conclude that Ha mby has not foreclosed

the possib ility of turning his “driveway” into an access road for a future subdivision on his propert y. While t

he tr ial cour

t did not mak

e an exp ress find ing to this effect, it consiste ntly referred to the drive as a “roadway.” This implies that the trial court may not have found credibl e Hamby’s testimony that he would never use the “driveway” as a public r oad. The trial cou

rt is in

a better position to judge the credibi lity of witne sses, and thus its findings involving questions of credibi lity receivegreat deference on appe al. Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996).8

In addition, while Ha

mby’s pro perty is a djacent to Lot 13, h

is reside nce is not

. His easement would connect Sanford Drive to a road through his property, the road which leads to Hamby’s home. Therefore, Hamby’s p

roposed u se of the

easeme nt is mu ch c loser to that of an access road than a driveway, even if Hamby never deve lops his property as a residential subdivision. In addition, the trial cou

rt found t hat the r estricti ve cove

nants precluded us e of any lot “for purposes of an ea sement, r oadway, or acce ss way to o ther pro pertynot b ound by the

restric tions, separa te and apa

rt from the reside

nce loca ted on tha

t lot.” Thi s i s in accor d with Lapray and supports the conclusion that even a personal driveway would violate the restrictive covenants. As noted earlier , Hamby ha s not bound his prope

rty to the s ame res tr ictive c ovenants governing El Rancho Es tates. I n sum, we conclude that the trial court correctly found that Ha mby’s propo sed use of

th e easement would not be for a

residen tial purpo se and wouldtheref ore viola te the re strictive

covena nt. The decision of the trial court is affirmed on that basis. Therefor e, the other issues raised by Hamby on appeal are pretermitted. The Burnetts argue on appeal that the trial court erred in ruling that their recently recorded amendme nts to the restrictive covenants cannot become effective until the year 2000. The language of the ninth restrictive covenant is straightforward. The tria l court int erpret ed it acc ording to its “ordinary and customary meaning.” The holding of the trial court on this issue is affirmed. See Aldridge v. Morgan , 912 S.W.2d 151, 153 (Tenn. App. 1995). The decision

of the tri al court

is affir med. Costs are assessed

against Appellant, for which execution may issue if necessary. HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S.

ALAN E. HIGHERS, J.