IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 128

OCTOBER TERM, A.D. 2021

November 24, 2021

J. WILLIAM WINNEY, JR. and 

LOUISE B. WINNEY,

Appellants

(Plaintiffs),

v.

THE HOBACK RANCHES 

PROPERTY OWNERS

IMPROVEMENT AND SERVICE 

DISTRICT a/k/a Hoback Ranches 

Service and Improvement District and 

MICHAEL TROY JERUP,

Appellees

(Defendants).

S-21-0057

Appeal from the District Court of Sublette County

The Honorable Marvin L. Tyler, Judge

Representing Appellants:

Clark Stith, Rock Springs, Wyoming.

Representing Appellee the Hoback Ranches Property Owners Improvement and Service 

District:

Stuart R. Day of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Representing Appellee Michael Troy Jerup:

Erica R. Day of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Before FOX, C.J., and DAVIS, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, 

Wyoming 82002, of typographical or other formal errors so correction may be made before final 

publication in the permanent volume.
1

KAUTZ, Justice.

[¶1] J. William Winney, Jr., and Louise B. Winney (the Winneys) reside in the Hoback

Ranches subdivision in Sublette County, Wyoming. They brought suit against the Hoback 

Ranches Property Owners Improvement and Service District (HRISD) and their neighbor, 

Michael Troy Jerup, alleging (1) HRISD illegally imposed annual property tax levies on 

the subdivision’s landowners in excess of 8 mills; (2) HRISD violated the subdivision’s 

protective covenants by installing wire fencing around the subdivision’s perimeter; and (3) 

Mr. Jerup violated the covenants by conducting commercial activity on his property. 

HRISD and Mr. Jerup filed a counterclaim against the Winneys alleging they violated the 

protective covenants by installing two wood posts set in concrete within a roadway 

easement. The district court granted summary judgment to HRISD on the Winneys’ claims 

against it; granted summary judgment to HRISD and Mr. Jerup on their counterclaim 

against the Winneys; and entered judgment in favor of Mr. Jerup on the Winneys’ claim 

against him after a bench trial. We conclude the district court erred in granting summary 

judgment to HRISD on the perimeter fence issue and reverse and remand with respect to 

that issue. We affirm the district court’s decision in all other respects.

ISSUES

[¶2] The Winneys raise four issues, which we restate as follows:

1. Did the district court err in deciding HRISD’s taxing authority was not limited 

by the 8 mill levy limitation contained in the Petition for Formation?

2. Did the district court err in concluding HRISD was not bound by the protective 

covenants applicable to the Hoback Ranches subdivision, including their requirement that 

all fences be of buck and pole construction?

3. Did the district court err in deciding HRISD had the authority to enforce the 

protective covenants’ easement provision against the Winneys? 

4. Did the district court clearly err by finding Mr. Jerup had not conducted 

commercial activity upon his property? 

FACTS

Creation of Subdivision and Protective Covenants

[¶3] In 1976, Hoback Ranches, Inc., through its President Doyle F. Child, recorded a 

subdivision plat creating the Hoback Ranches, a 6,500-acre rural residential subdivision in 

Sublette County, Wyoming. The subdivision’s plat noted in relevant part: “All road rightof-way widths are 66 feet, 33 feet either side of the shown centerline . . . . Where no roads 
2

are shown, access to tracts is to be along property lines.” (Capitalization omitted). It also 

stated: “No public maintenance of roads.” (Capitalization omitted). 

[¶4] On the same day Hoback Ranches, Inc., recorded the subdivision plat, it filed a 

“Declaration of Protective Covenants” applicable to the subdivision. The stated purposes 

of the covenants are “to insure the use of the property for attractive residential purposes, to 

prevent nuisances, to prevent the impairment of the attractiveness of the property, [and] to 

maintain the natural environment and protect the ecology of the area” thereby “secur[ing] 

to each tract owner the full benefit and enjoyment of his respective tract.” Relevant here, 

the protective covenants provide:

1. All lands covered by this deed shall be used for 

residential purposes only, and no commercial activity shall be 

conducted or permitted thereon.

* * * *

9. All fences shall be of buck and pole construction 

made of rough native timber. The buck shall be at least six feet 

tall and there shall be at least four poles on each span and each 

span can be no longer than 12 feet in width. The owner of each 

tract shall be responsible for erecting and maintaining a fence 

and gates around his respective tract if he desires to prevent the 

trespass of cattle or other livestock grazing or being ridden in 

the area.

* * * *

20. There are hereby reserved to grantors for the 

purpose of having adequate bridle paths, roadways, and utility 

easements to serve each tract, a perpetual easement 33 feet in 

width along each edge of the herein described tract[s], for the 

purpose of erecting, constructing, and maintaining bridle paths, 

roadways, and public utility facilities, both underground and 

overhead. Grantor hereby reserves the right to change, layout 

a new, or discontinue any roadway, bridle path, or utility 

easement, in its sole discretion, that would be beneficial in 

serving any tract in Hoback Ranches . . . .

[¶5] The covenants state they “shall be perpetual and shall apply to and be forever 

binding upon the grantees hereof, [their] heirs, executors, administrators, and assigns, and 

are imposed upon the realty described herein as an obligation and charge against the same 

for the benefit of the grantor herein and the owners of each adjoining tract, their successors 

and assigns, and as a general plan for the benefit of said tract and all tracts in Hoback 

Ranches.” They give Hoback Ranches, Inc., and the subdivision’s landowners the 

authority to enforce the covenants by filing a lawsuit against the violator “either to prevent 
3

him from doing so, or to recover damages, including costs and reasonable attorney fees, 

for such violation, or both.” 

Formation of HRISD

[¶6] For the first nine years of the subdivision’s existence, Hoback Ranches, Inc., and/or 

Mr. Child paid to maintain and improve the subdivision’s roads and perimeter fence and to 

keep hunters out of the subdivision. In early 1985, Mr. Child informed the subdivision’s 

landowners that beginning in 1986, he and Hoback Ranches, Inc., would no longer provide 

these services and recommended the formation of a property owners’ improvement and 

service district with taxing authority. 

[¶7] A petition to form the improvement and service district (“Petition for Formation” or 

“Petition”) was circulated to the subdivision’s landowners. The Petition requested the 

Sublette County Commissioners form and establish the district “for the maintenance of the 

perimeter fence[] around the boundary of the proposed District, for the protection from 

hunters within the proposed District and for the maintenance of roads which are located in 

the proposed District and road(s) leading from U.S. Highway 187 and 189 to the boundary 

line of the proposed District and from one part of the proposed District to another part of 

the proposed District.” It “proposed” the district be financed as follows:

[Y]our petitioners request that a mill levy be assessed against 

the land within the proposed District sufficient to fund the 

improvement and services as hereinbefore proposed, the total 

amount of the assessment against the land located within the 

proposed District to be apportioned and assessed against the 

various lots and tracts of land located in the proposed District 

based upon the assessed valuation of said land and real 

property located within the proposed District as valued and 

used by the County Assessor for Sublette County in making 

assessment upon said land and real property for other taxes 

levied against said property by the County Assessor. However,

your petitioners request that a limit of eight (8) mills be 

imposed as the maxi[m]um amount of assessment which may 

be levied upon said property as aforementioned. 

(Emphasis added). 

[¶8] After the Petition for Formation was signed by the requisite number of landowners, 

the Sublette County Commissioners published notice they would be holding a public 

hearing concerning the Petition on August 20, 1985. The record does not contain the 
4

complete notice.1 From the information available, it provided the following as to the 

“Proposed Financing Arrangements” of the district:

That a mill levy be assessed against the land within the 

proposed district sufficient to fund the [proposed] 

improvements and services . . ., the total amount of the 

assessment against the land located within the proposed district 

to be apportioned and assessed against the various lots and 

tracts of land located in the proposed district.

The notice did not contain any language indicating HRISD’s taxing authority would be 

limited to 8 mills. 

[¶9] At the public hearing, the Sublette County Commissioners found “the establishment 

of the proposed district would serve the public convenience and necessity” in the 

subdivision. They passed Resolution 86-85J establishing HRISD “for the purpose[s] of 

maintaining the perimeter fence[] around the boundary of [HRISD], of protecting [HRISD] 

from hunters, and of maintaining roads located in [HRISD] and road(s) leading from U.S. 

Highways 187 and 189 to the boundary line of [HRISD].” HRISD’s boundaries were the 

subdivision’s boundaries. The resolution called for an election by the subdivision’s 

landowners to be held in August 1986 to decide whether to organize HRISD and to appoint 

an initial board of directors. Resolution 86-85J did not mention how HRISD would be 

funded, let alone impose any limitation on its authority to collect revenue.2 

1

In their brief, the Winneys correctly state the notice indicated the hearing on the Petition for Formation 

would be held on August 20, 1985. They then state: “Time passed, and on July 1, 1986, the Sublette 

County Commissioners posted a notice of hearing on the Petition, stating that ‘the petition as filed may be 

inspected at the office of the county commissioners . . . .’ That ‘Notice of Hearing’ listed no date, time, or 

place for the hearing.” For these statements, the Winneys appear to be relying on Exhibit 3 to their 

attorney’s affidavit in support of their motions for partial summary judgment. Exhibit 3 consists of two 

pages. The first page is a notice of hearing on the Petition for Formation and contains four numbered 

paragraphs. The second page is dated July 1, 1986, as the Winneys state in their brief, but does not appear 

to be a continuation of the first page (i.e., the notice of hearing on the Petition for Formation) for two 

reasons. The second page is dated after the County Commissioners had already held the public hearing on 

the Petition for Formation and resolved to establish HRISD. Additionally, the second page starts at 

Paragraph 7 and is in a different font than the first page. Although not clear, it appears the second page is 

part of the notice provided of the August 1986 special election to decide whether to organize HRISD, rather 

than part of the notice of the August 1985 hearing on the Petition for Formation.

2 The district court stated Resolution 86-85J did not impose any limit on HRISD’s authority to levy taxes 

against the landowners but did outline the manner in which HRISD would derive its revenues whereby the 

“‘owners of land within the [HRISD] shall be assessed on an acreage assessment, in order that the cost of 

any given project shall be shared equitably among property owners which are benefitted by the effort.’” 

HRISD makes a similar statement in its brief. The district court and HRISD are correct that Resolution 86-

85J did not contain a limitation on HRISD’s taxing authority but are incorrect in stating it addressed how 

HRISD would raise revenue. The district court mistakenly quoted from the second page of Exhibit 3 to the 
5

[¶10] The Sublette County Clerk provided notice of the August 1986 election. The notice 

identified the purposes of HRISD—to maintain the subdivision’s perimeter fence and roads 

and to keep hunters out of the subdivision—and provided a list of nominees for the Board. 

The notice also stated: “If organized, the improvements and services as hereinbefore 

proposed will be financed by assessing a mill levy against the lands within the [HRISD].” 

Again, the notice did not contain any language indicating HRISD’s taxing authority was 

limited to 8 mills. A majority of the subdivision’s landowners voted to organize HRISD 

and elected a three-member Board of Directors. Since that time, HRISD has operated 

through its Board. 

[¶11] In September 1995, Hoback Ranches, Inc., assigned HRISD the authority to enforce 

the protective covenants. Hoback Ranches, Inc., and the landowners continued to have the 

right to enforce them. 

HRISD’s Taxing History

[¶12] From1986 through 2012, HRISD’s Board of Directors imposed an annual mill levy 

of no more than 8 mills on the subdivision’s landowners. The levies were assessed by the 

County, and the subdivision’s landowners paid them at the same time they remitted their 

property taxes to the County. Once collected, the County turned over the tax proceeds 

from the levies to HRISD’s Board. 

[¶13] In 2013, HRISD’s Board of Directors acknowledged the Petition for Formation 

contained a statement that “there would be a maximum of eight mills that could be levied 

against a property in any given year” and noted “there is the perception that an eight . . . 

mill levy [cap] is in effect with respect to [HRISD].” It passed a resolution stating it “is 

not restricted to an eight mill levy and may impose assessments to be equitably apportioned 

amongst the owners within [HRISD] in accordance with the benefits, following the 

adoption of a budget in accordance with Wyoming law.” Since then, HRISD’s Board has 

levied an annual tax in excess of 8 mills on the subdivision’s landowners. 

HRISD’s Installation of Wire Fencing

[¶14] HRISD maintains the approximately 37 miles of fence along the 

boundary/perimeter of the subdivision. A portion of its annual budget goes to repairing 

and/or replacing the perimeter fence. When portions of the perimeter fence are replaced, 

HRISD uses wire fencing rather than buck and pole fencing. 

Winneys’ attorney’s affidavit in support of their motions for partial summary judgment. As explained 

above, see supra n. 1, the second page to Exhibit 3 appears to be the notice of election to organize the 

district; it is not Resolution 86-85J. 
6

The Winneys’ Placement of Wood Posts

[¶15] The Winneys’ property in the subdivision is bordered on the south by Rim Road, 

which runs in an east-west direction and is maintained by HRISD, and on the east by Vista 

Ridge Lane, a platted easement running in a north-south direction which is not maintained 

by HRISD. They access their property via Rim Road, which they also use to access the 

public highway. Mr. Jerup’s property is directly north of the Winneys’ property. He 

accesses his property using Vista Ridge Lane; it is the only access to his property, as well 

as for three other properties to the north of Mr. Jerup’s property. To leave the subdivision, 

Mr. Jerup travels south on Vista Ridge Lane, past the Winneys’ residence, and turns either 

east or west onto Rim Road. Both the Winneys and Mr. Jerup are year-round residents of 

the subdivision. 

[¶16] In the summer of 2015, the Winneys placed two wood posts set in concrete on their 

property in anticipation of installing a gate with an arch. The posts are not located on Vista 

Ridge Lane as constructed but are within the Vista Ridge Lane easement. 

Mr. Jerup’s Alleged Commercial Activity

[¶17] Since its formation, HRISD has paid a homeowner in the subdivision to maintain 

the subdivision’s roads because it would be more expensive to hire an outside party and it 

is imperative to have someone who lives nearby to respond to emergencies, such as a road 

being washed out. Prior to 2015, HRISD paid subdivision landowners Woody and Sandy 

Caldwell to maintain the subdivision’s roads with their personal motor grader. In 2015, 

the Caldwells “retired” from this responsibility and placed their motor grader for sale. Mr. 

Jerup purchased the grader from the Caldwells. At the same time, HRISD sought bids from 

interested individuals to take over the road maintenance. 

[¶18] Mr. Jerup submitted a bid to HRISD which proposed a certain hourly charge based 

on the equipment used. At the time he submitted the bid, he owned the motor grader, a 

tractor with a loader bucket, a backhoe, and a dump truck. He stored these items on his 

property. To fuel his equipment, Mr. Jerup has a 100-gallon diesel fuel tank on his 

property; the tank is filled once a month by an outside company. HRISD awarded the road 

maintenance duties to Mr. Jerup. 

[¶19] Mr. Jerup performs road maintenance for HRISD one day per week in the summer. 

HRISD paid Mr. Jerup $2,250 in 2015; $27,190 in 2016; $16,682.50 in 2017; and $12,342 

in 2018 for road maintenance. On his 2015 and 2016 tax returns, Mr. Jerup reported 

income from HRISD for “[d]irt road maintenance” on an IRS form entitled “Schedule C, 

Profit or Loss From Business.” In 2015, he deducted the expense of purchasing the motor 

grader; in 2016, he depreciated the grader on his taxes. In 2016, Mr. Jerup also deducted 

$3,855, the amount he paid Mr. Caldwell to help him with the road maintenance. 
7

[¶20] In August 2017, Mr. Jerup sold the motor grader to HRISD. It remained for a time 

on Mr. Jerup’s property. At the time of the bench trial in January 2020, the grader had 

been moved to the subdivision’s community parking lot for storage in the winter; however, 

it will be moved back to Mr. Jerup’s property in the summer. 

[¶21] In May 2018, Mr. Jerup performed several hours of maintenance and repairs on the 

motor grader for HRISD. HRISD paid him for his services and reimbursed him for the 

parts he purchased. Mr. Jerup performed this work on his property. In June 2019, Mr. 

Jerup began constructing a shop on his property to store his equipment. 

[¶22] HRISD does not snowplow or pay a third-party to snowplow the subdivision’s 

roads. When Mr. Jerup first purchased his property in 2007, the subdivision’s landowners 

parked their vehicles on the public highway outside the subdivision and used snowmobiles 

to access their properties. The Wyoming Department of Transportation (WYDOT) 

eventually prohibited them from parking on the highway so two subdivision residents 

began plowing the subdivision’s roads. Mr. Jerup eventually took over plowing for one of 

the resident plowers. 

[¶23] In 2007 or 2008, HRISD’s Board of Directors created a Winter Committee, which 

solicits voluntary donations from landowners for snowplowing. The Winneys have 

contributed to the Winter Committee. Mr. Jerup is one of several landowners paid by the 

Winter Committee to snowplow the subdivision’s roads. He is mainly responsible for 

plowing Rim Road, which Mr. Jerup, the Winneys, and other landowners use to access the 

public highway from their properties. When Mr. Jerup plows, he primarily uses his flatbed 

pick-up truck with a blade on the front; he takes the same truck to work during the winter 

to ensure access to and from his home. Two or three times per year, he uses his dump 

truck, which has a blade attachment, and the motor grader to remove ice or to plow if there 

is heavy drifting. All of the residents who plow snow for the Winter Committee, including 

Mr. Jerup, store their equipment on their properties. 

[¶24] Neither HRISD nor the Winter Committee pays Mr. Jerup or any other person to 

maintain and plow Vista Ridge Lane. Mr. Jerup voluntarily maintains and plows Vista 

Ridge Lane so he can get to work each day and he and his neighbors to the north can safely 

access their properties. 

This Lawsuit

[¶25] The Winneys brought suit against HRISD and Mr. Jerup, alleging, among other 

things: (1) HRISD’s imposition of annual property tax levies in excess of 8 mills was ultra 

vires because such action is outside the powers given to HRISD in the Petition for 

Formation; (2) HRISD violated the protective covenants by installing wire fencing around 

the subdivision’s perimeter rather than buck and pole fencing; and (3) Mr. Jerup violated 

the covenants by conducting commercial activity on his property, to wit, a road grading
8

and snowplowing business. They sought (1) an injunction enjoining HRISD from 

imposing property tax levies greater than 8 mills and from installing fencing other than 

buck and pole fencing; and (2) an injunction enjoining Mr. Jerup from conducting 

commercial activity on his property and requiring him to remove the heavy equipment from 

his property. They also sought the attorney fees and costs they incurred in enforcing the 

protective covenants. HRISD and Mr. Jerup filed a counterclaim against the Winneys, 

alleging, inter alia, the Winneys’ placement of the wood posts within the Vista Ridge Lane 

easement violated the protective covenants. 

[¶26] The parties filed cross-motions for summary judgment. The district court granted 

summary judgment to HRISD on the Winneys’ claims against it. It concluded HRISD’s 

taxing authority was not limited to 8 mills despite the language of the Petition for 

Formation and HRISD was not bound by the protective covenants, including their 

requirement that all fences be of buck and pole construction, because they applied only to 

the subdivision’s landowners and HRISD does not own any land within the subdivision. It 

also found the covenants were silent regarding the subdivision’s perimeter fence. The court 

granted summary judgment to HRISD and Mr. Jerup on their counterclaim against the 

Winneys because the Winneys’ placement of the wood posts within the Vista Ridge Lane 

easement violated the covenants. It ordered the Winneys to remove the posts and enjoined 

them from placing any permanent obstructions in the easement or otherwise unreasonably 

interfering with the use of the easement. The court denied the parties’ summary judgment 

motions with respect to whether Mr. Jerup violated the covenants by conducting 

commercial activity on his property, concluding the covenants were “vague and ambiguous 

when evaluating whether [Mr.] Jerup’s activities upon his property violate the intent of the 

[p]rotective [c]ovenants” and material questions of fact remained in dispute. (Emphasis in 

original). That issue proceeded to a two-day bench trial. After the trial, the court found 

and concluded that other than Mr. Jerup’s “de minimis technical violation” of the covenants 

when he maintained and repaired the motor grader on his property for HRISD in May 2018, 

Mr. Jerup had not conducted “commercial activities upon his property” in violation of the 

covenants. It entered judgment accordingly. The Winneys appealed. 

[¶27] Additional facts will be set out, as necessary, in the discussion of the issues.

DISCUSSION

A. HRISD’s Taxing Authority

[¶28] The Winneys argue the district court erred in concluding HRISD’s authority to levy 

taxes was not limited to 8 mills as outlined in the Petition for Formation. They say it is 

immaterial that Resolution 86-85J does not contain an 8 mill levy cap because the Sublette 

County Commissioners had no authority to set a mill levy or change the mill levy outlined 

in the Petition for Formation. They assert the Commissioners’ powers were limited to 

approving or denying the Petition for Formation; setting the district’s boundaries; naming 
9

it; and modifying the terms and conditions proposed for the control of the district or 

conditioning their approval on subsequent events. The Winneys also argue it is impossible 

to know whether the 1986 ballot to organize HRISD contained the 8 mill levy limitation 

because the parties were unable to find a copy of the ballot and there was no evidence 

concerning its language. Finally, the Winneys tell us that to ignore the “method of 

financing” outlined in the Petition would (1) render meaningless the statutory requirement 

that petitions for formation contain a “method of financing,” (2) mean that none of the 

other terms of the Petition for Formation have any legal effect, including the Petition’s 

language limiting the purposes and powers of HRISD to maintaining the subdivision’s 

roads and perimeter fences and keeping hunters out of the subdivision, and (3) violate the 

“social contract” formed by the landowners in signing the Petition. 

[¶29] Our review of the district court’s order granting summary judgment to HRISD is de 

novo. Wyoming Jet Ctr., LLC v. Jackson Hole Airport Bd., 2019 WY 6, ¶ 10, 432 P.3d 

910, 914 (Wyo. 2019) (quoting Reichert v. Daugherty, 2018 WY 103, ¶ 11, 425 P.3d 990, 

994 (Wyo. 2018)) (other citations omitted). “‘We also review de novo a district court’s 

interpretation of a statute.’” Wyo. State Hosp. v. Romine (Romine), 2021 WY 47, ¶ 24, 483 

P.3d 840, 847 (Wyo. 2021) (quoting Black Diamond Energy of Del., Inc. v. Wyo. Oil & 

Gas Conservation Comm’n, 2020 WY 45, ¶ 10, 460 P.3d 740, 744 (Wyo. 2020)).

[¶30] At the time HRISD was formed, the Improvement and Service District Act (Act), 

which is currently codified at Wyo. Stat. Ann. §§ 18-12-105 to 18-12-141 (LexisNexis 

2021), required “[p]roceedings for the formation of a district” to be “commenced by filing 

a petition addressed to the commissioners of the county in which the land proposed to be 

included in the district is situated.” 1977 Session Laws, ch. 172 § 1. The petition for 

formation was to (1) “[s]tate the proposed name for the district”; (2) “[s]et forth the 

boundaries of the district and describe the lands situated therein”; (3) “[r]equest that a 

district be formed under this act”; (4) “[d]escribe generally the improvements proposed to 

be acquired or constructed and operated and the services to be furnished to inhabitants of 

the district”; (5) “[d]etail the proposed method for financing the improvements or 

services”; and (6) “[n]ominate three . . . persons . . . to serve as the initial board of directors 

of the district.” Id. Once the petition for formation was filed with the county 

commissioners, the commissioners were to “fix a time and place” for a hearing on the 

petition and publish notice thereof. Id. The notice was to provide, inter alia, “[a] 

description of the proposed financing arrangements.” Id. If, after the hearing, the 

commissioners found “that the establishment of the proposed district would serve the 

public convenience and necessity in that area and that the petition had been properly 

presented,” they were to “adopt a resolution to establish the formation of the district,” “call 

an election on the organization of the district,” “establish and describe the [district’s] 

boundaries,” and “designate a name for the district.” Id.; 1981 Session Laws, ch. 157, § 2. 

The commissioners could choose the name “proposed in the petition [for formation] or any 

other name [they] select[ed].” 1977 Session Laws, ch. 172 § 1. They could also “modify 
10

the terms and conditions proposed for the control of the district or condition their approval 

upon subsequent events.” Id. 

[¶31] Section 18-12-122 required the county commissioners to publish notice of the 

election to organize the district; the notice was to contain (1) “the information listed in the 

petition for formation,” (2) “the names of any persons nominated as directors in addition 

to those named in the petition,” and (3) “the time, date and polling place or places for the 

election.” 1981 Session Laws, ch. 157, § 2. At the election, the voters were to “vote for 

or against the organization of the district” and “for three . . . persons to serve as the board 

of directors of the district, if organized.” Id. If a majority of the votes were in favor of 

organization, the county commissioners were to declare the district organized. Id. Once 

organized, a district was to be “managed and controlled” by a three-member elected Board. 

Id. 

[¶32] Under this statutory framework, a petition for formation had no legal effect other 

than to begin the process to form an improvement and service district. As its name implies, 

a “petition” for formation of a district is simply a “formal written request” to the county 

commissioners to form the district; it does not establish or organize a district. See 

https://www.merriam-webster.com/dictionary/petition (defining “petition” as “a formal 

written request made to an authority or organized body”). See also, Petition, Black’s Law 

Dictionary (11th ed. 2019) (“petition” means “[a] formal written request presented to a court 

or other official body”). The Petition for Formation in this case simply “request[ed]” the 

Sublette County Commissioners form the district; “proposed” a name for the district; 

“proposed” the district’s boundaries; “proposed” the services the district would provide; 

“proposed” a method of financing; “request[ed]” the “proposed” district be financed by a 

mill levy; and “request[ed]” the mill levy be limited to 8 mills. (Capitalization omitted). 

[¶33] The Sublette County Commissioners established HRISD via Resolution 86-85J 

after holding a public hearing and finding “the establishment of the proposed district would 

serve the public convenience and necessity in the area specified in the petition.” A majority

of the landowners voted to organize HRISD in the 1986 election. Resolution 86-85J does 

not contain any limitation on HRISD’s taxing authority. In fact, it is completely silent with 

respect to how HRISD would derive its revenues. Similarly, although the language used 

on the 1986 election ballot is not in the record, the published notice of the election simply 

stated that if the voters chose to organize HRISD, it would be “financed by assessing a mill 

levy against the lands within the [HRISD].” The notice did not mention the 8 mill levy 

cap. Moreover, the statute pertaining to organization of a district required the voters to 

simply “vote for or against the organization.” 1981 Session Laws, ch. 157, § 2.

[¶34] None of the terms of the Petition for Formation controlled HRISD after it was 

established by the Commissioners and organized by the landowners. HRISD’s authority 

is defined by Resolution 86-85J, its organizational documents, and the Act. As we stated 

above, Resolution 86-85J does not contain an 8 mill levy cap, and the Winneys have never 
11

alleged any such limit is contained within HRISD’s organizational documents. The Act 

did not and does not impose any mill levy limitation on improvement and service districts. 

Notably, the Wyoming legislature expressly imposed mill levy limits for other types of 

districts, including special museum districts, solid waste disposal districts, hospital 

districts, and special cemetery districts. See Wyo. Stat. Ann. §§ 18-10-213(b) (LexisNexis 

2021) (special museum districts), 18-11-103(a) (LexisNexis 2021) (solid waste disposal 

districts), 35-2-414(b) (LexisNexis 2021) (hospital districts), 35-8-314(b) (LexisNexis 

2021) (special cemetery districts). The fact that the legislature did so with respect to these 

districts but not for improvement and service districts demonstrates the legislature knew 

how to impose a mill levy cap had it wanted to and its failure to do so for improvement and 

service districts was intentional. Rodriguez v. Casey, 2002 WY 111, ¶ 10, 50 P.3d 323, 

327 (Wyo. 2002) (“We presume that the legislature acts intentionally when it uses 

particular language in one statute, but not in another.”) (citations omitted). See also, 

Romine, ¶ 29, 483 P.3d at 848 (“The use of the term ‘malpractice claims’ in the Medical 

Review Panel Act demonstrates the legislature knew how to limit the scope of a statute to 

malpractice claims. It did not include any such limitation in § 1-39-110 and we are not at 

liberty to read one into it.”); United States v. Burkholder, 816 F.3d 607, 615 (10th Cir. 

2016) (the fact Congress explicitly included proximate-cause language in other criminal 

penalty-enhancement statutes shows Congress “clearly knew how to add a proximate-cause 

requirement in criminal penalty-enhancement statutes when it wished to do so” and its 

failure to include such language in 21 U.S.C. § 841(b)(1)(E) suggests its omission was 

intentional). 

[¶35] Not only does the Act not impose a mill levy or other cap on an improvement and

service district’s authority to tax, it explicitly allowed and continues to allow a district the 

power to“[e]stablish and collect charges for water, sanitation and related services and the 

use of improvements or services provided by the district, including authority to change the 

amount or rate thereof, and to pledge the revenues therefrom for the payment of district 

indebtedness.” 1977 Session Laws, ch. 173, § 1; Wyo. Stat. Ann. § 18-12-112(a)(viii) 

(emphasis added). As the district court aptly stated, this statute reflects the reality that a 

district’s costs “to provide services are not static, and they are subject to change as the 

board of directors may, from time-to-time, deem appropriate.” 

[¶36] Moreover, at the time HRISD was established, § 18-12-107 required a petition to 

form a district to “[d]etail the proposed method for financing the improvements or 

services.” 1977 Session Laws, ch. 173, § 1 (emphasis added). The plain meaning of 

“method” is “a procedure or process for attaining an object.” See https://www.merriamwebster.com/dictionary/method. The “procedure or process” for financing improvements 

and services is the means by which these items will be funded, not the amount of financing. 

While it was proper for the Petition for Formation to contain the means by which HRISD 

would be funded, i.e., a mill levy, any amount or limitation on that funding was 

superfluous.
12

[¶37] Because the landowners were on notice that any district formed would have the 

authority to collect revenue and to “change the amount or rate thereof” and there was no 

statutory authority for a mill levy limit to be included in the Petition for Formation, we 

reject the Winneys’ argument that the Petition constituted a “social contract” binding on 

HRISD. For their “social contract” argument, the Winneys primarily rely on Gronberg v. 

Teton Cnty. Housing Auth., 2011 WY 13, 247 P.3d 35 (Wyo. 2011). Gronberg is 

inapposite.

[¶38] Voters in Teton County approved a sales tax, known as a Special Purpose Excise 

Tax, to fund $5 million for the Teton County Housing Authority’s (TCHA) “‘[a]ffordable 

[h]ousing [p]rogram . . . which shall include the acquisition . . . of properties . . . to be 

utilized for affordable housing . . . .’” Gronberg, ¶ 5, 247 P.3d at 38 (emphasis added). 

The TCHA used the tax proceeds to purchase property to be used either directly for an 

affordable housing project or indirectly as an investment which could eventually be sold, 

with the sale proceeds used for affordable housing. Id., ¶¶ 6, 33, 247 P.3d at 38, 43-44. 

We concluded to the extent the TCHA’s purchase of the property was to serve as an 

investment, it was unlawful because Wyo. Stat. Ann. § 39-15-204(a)(iii) (LexisNexis 2021)

required special purpose excise tax proceeds to be used “‘for specific purposes authorized 

by the qualified electors.’” Id., ¶¶ 32, 34, 247 P.3d at 43-44 (quoting § 39-15-204(a)(iii)). 

We concluded the voters authorized the tax proceeds “to be utilized for affordable 

housing,” which required TCHA to use the tax proceeds to purchase land which would be 

directly used for affordable housing and not indirectly as an investment. Id., ¶¶ 33-34, 247 

P.3d at 43-44. 

[¶39] Here, unlike in Gronberg, there is no evidence an 8 mill levy limit was placed on 

the ballot to organize the district in 1986. Moreover, there is no statute imposing a limit 

on an improvement and service district’s taxing authority. Rather, the Act specifically 

allowed and continues to allow a district to change the amount or rate it charges for the use 

of the improvements and services it provides. 1977 Session Laws, ch. 173, § 1; Wyo. Stat. 

Ann. § 18-12-112(a)(viii).

[¶40] The Winneys argue if the “method of financing” contained in the Petition for 

Formation does not control, then the requirement that a petition to form a district contain a 

“method for financing” is rendered superfluous and none of the other terms of the Petition 

have any legal effect, including the Petition’s language limiting the purposes and powers 

of HRISD to maintaining the subdivision’s roads and perimeter fence and keeping hunters 

out of the subdivision. According to them, this means HRISD could exercise any of the 

powers authorized under the Act, including constructing a bridge, golf course, or 

swimming pool. They claim this is a nonsensical result.

[¶41] There are two problems with the Winneys’ argument. First, that the method of 

financing contained in the Petition for Formation has no legal effect after the Sublette 

County Commissioners resolved to establish HRISD and the landowners voted to organize 
13

it does not render superfluous the requirement that a petition to form a district contain a 

“method for financing.” At the time HRISD was formed, a “method for financing” was 

required to be contained in the petition and a petition was required to start the process to 

form a district. See 1977 Session Laws, ch. 173, § 1. Notably, although the Act continues 

to require a petition for formation to begin the process to form a district, see § 18-12-105, 

it no longer requires the petition to include any of the information required when HRISD 

was formed, including a “method for financing.” 1998 Session Laws, ch. 115, § 5. 

[¶42] Second, the fact that none of the terms of the Petition for Formation have any legal 

effect other than that they were required to be included in the petition and the petition was 

necessary to start the process to form a district does not lead to an absurd result. Resolution 

86-85J sets forth the “purposes” of HRISD—to maintain the subdivision’s perimeter fence 

and roads and keep hunters out of the subdivision. Because the Resolution controls, there 

is no need to rely on the Petition for Formation for HRISD’s “purposes.” Moreover, the 

Winneys confuse a district’s “purposes” with its “powers.” Section 18-12-112 outlines the 

“powers” of a district. Those powers include, as noted above, the authority to “[e]stablish 

and collect charges for . . . the use of improvements or services provided by the district, 

including the authority to change the amount or rate thereof.” Section 18-12-112(a)(viii). 

They also include the authority to (1) “[h]ave and use a corporate seal”; (2) “[s]ue and be 

sued, and be a party to suits, actions and proceedings”; (3) “[e]nter into contracts for the 

purpose of providing any authorized improvements and the maintenance and operation 

thereof, or otherwise to carry out the purposes of the district”; (4) “[a]ccept from any public 

or private source grants, preferred loans, contributions and any other benefits available for 

use in the furtherance of its purposes”; (5) “[a]cquire and own or lease real or personal 

property, including easements and rights-of-way, within or without the district for district 

purposes”; (6) “[p]rovide for public recreation by means of parks, including but not limited 

to playgrounds, golf courses, swimming pools or recreation buildings”; and (7) “[p]rovide 

for the construction . . . of bridges, culverts, curbs, gutters, drains and works incidental to 

any street improvement.” Section 18-12-112(a)(i), (ii), (iii), (iv), (ix), (xv), (xviii). Some 

of a district’s “powers” are statutorily limited by its “purposes,” e.g. a district’s authority 

to obtain grants, loans, contributions or other benefits, and its power to obtain real property 

in or outside the district. Section 18-12-112(a)(iv), (ix). However, a district’s statutory 

powers to do some other things, such as to provide for public recreation, including a golf 

course and swimming pool, and to construct bridges, are not so limited. Section 18-12-

112(a)(xv), (xviii). As a result, HRISD has the “power” to provide these things. Of course, 

that does not mean its Board will exercise that power.

[¶43] The district court correctly decided HRISD’s taxing authority was not limited to the 

8 mill levy limitation outlined in the Petition for Formation. 

B. HRISD’s Alleged Violation of Covenant Regarding Fences
14

[¶44] The Winneys argue the district court erred in determining the protective covenants 

did not apply to HRISD. According to them, the covenants apply to HRISD because it has 

the authority to enforce them. The Winneys also maintain the district court erred in finding 

the covenants were silent with respect to the subdivision’s perimeter fence. They claim 

the covenants require “all fences” to be of buck and pole construction, including the

subdivision’s perimeter fence. Moreover, the covenants apply to the “realty described 

therein,” which means the entire subdivision, including its perimeter.

[¶45] Again, our review of the district court’s summary judgment decision is de novo. 

Wyoming Jet Ctr., LLC, ¶ 10, 432 P.3d at 914 (quoting Reichert, ¶ 11, 425 P.3d at 994) 

(other citations omitted). We also review de novo the district court’s interpretation of the 

protective covenants. Gumpel v. Copperleaf Homeowners Ass’n, Inc., 2017 WY 46, ¶ 25, 

393 P.3d 1279, 1289 (Wyo. 2017) (citing Wimer v. Cook, 2016 WY 29, ¶ 21, 369 P.3d 210, 

218 (Wyo. 2016)). 

[¶46] “Covenants are contractual in nature and we therefore interpret them as we would a 

contract.” Id., ¶ 29, 393 P.3d at 1290 (citing Wimer, ¶ 22, 369 P.3d at 218) (other citation 

omitted). Our goal is “‘to determine and effectuate the intention of the parties, especially 

the grantor or declarant,’” in this case Hoback Ranches, Inc. Wimer, ¶ 22, 369 P.3d at 218 

(quoting Omohundro v. Sullivan, 2009 WY 38, ¶ 9, 202 P.3d 1077, 1081 (Wyo. 2009)). 

[¶47] As with any contract interpretation, we begin with a covenant’s plain language:

[T]he words used in the [covenant] are afforded the plain 

meaning that a reasonable person would give to them.

Doctors’ Co. v. Insurance Corp. of America, 864 P.2d 1018, 

1023 (Wyo. 1993). When the provisions in the [covenant] are 

clear and unambiguous, the court looks only to the “four 

corners” of the document in arriving at the intent of the parties. 

Union Pacific Resources Co. [v. Texaco], 882 P.2d [212], 220 

[(Wyo. 1994)]; Prudential Preferred Properties [v. J and J 

Ventures], 859 P.2d [1267,] 1271 [(Wyo. 1993)]. 

Gumpel, ¶ 29, 393 P.3d at 1290 (quoting Thornock v. PacifiCorp, 2016 WY 93, ¶ 13, 379 

P.3d 175, 180 (Wyo. 2016)). 

[¶48] A restrictive covenant is ambiguous “only if it ‘is obscure in its meaning, because 

of indefiniteness of expression, or because a double meaning is present.’” Reichert, ¶ 16, 

425 P.3d at 995 (quoting Fix v. Forelle, 2014 WY 79, ¶ 16, 327 P.3d 745, 749 (Wyo. 2014), 

and Fayard v. Design Comm. of Homestead Subdivision, 2010 WY 51, ¶ 12, 230 P.3d 299, 

303 (Wyo. 2010)). In the absence of an ambiguity, “we adhere to the covenant’s ‘plain 

and ordinary meaning without reference to attendant facts and circumstances or extrinsic 
15

evidence.’” Id. (quoting Star Valley Ranch Ass’n v. Daley, 2014 WY 116, ¶ 12, 334 P.3d 

1207, 1210 (Wyo. 2014), and Anderson v. Bommer, 926 P.2d 959, 961-62 (Wyo. 1996)). 

[¶49] The relevant protective covenant states:

All fences shall be of buck and pole construction made 

of rough native timber. The buck shall be at least six feet tall 

and there shall be at least four poles on each span and each span 

can be no longer than 12 feet in width. The owner of each tract 

shall be responsible for erecting and maintaining a fence and 

gates around his respective tract if he desires to prevent the 

trespass of cattle or other livestock grazing or being ridden in 

the area.

The covenant is not indefinite or subject to multiple meanings. It states “all” fences are to 

be of buck and pole construction. “‘All’ means everything.” P & N Investments, LLC v. 

Frontier Mall Assocs., LP, 2017 WY 62, ¶ 17, 395 P.3d 1101, 1105 (Wyo. 2017). See 

also, https://www.merriam-webster.com/dictionary/all (defining “[a]ll” as “the whole 

amount, quantity, or extent of” and “every”). The covenant requires every subdivision 

fence to be of buck and pole construction. It does not state it applies only to interior fences 

nor does it specifically exclude the subdivision’s perimeter fence from its reach.

[¶50] The protective covenants only burden the subdivision’s landowners. The covenants 

state: “The property that you purchase from Hoback Ranches [Inc.] will be subject to the 

following protective covenants, and the deed will recite: ‘The above described property is 

subject to the following protective covenants which shall be deemed covenants running 

with the land and binding upon the grantees [(subdivision’s landowners)] and their 

successors in interest.’” (Emphasis added). They also provide:

Said Protective Covenants, conditions, restrictions, and 

reservations shall be perpetual and shall apply to and be forever 

binding upon the [landowner], his heirs, executors, 

administrators, and assigns, and are imposed upon the realty

described herein as an obligation and charge against the same

for the benefit of the grantor herein [(Hoback Ranches, Inc.)] 

and the owners of each adjoining tract, their successors and 

assigns, and as a general plan for the benefit of said tract and 

all tracts in Hoback Ranches.”

(Emphasis added). It is undisputed that HRISD does not own any land in the subdivision. 

The problem, however, is that the subdivision’s perimeter fence is located on the property 

of the subdivision’s landowners, who are bound by the covenants.
16

[¶51] Gary Ryan, a subdivision landowner and a former director of HRISD’s Board, 

testified: “[The subdivision’s perimeter fence is] constructed on the property line between 

[the Bureau of Land Management (BLM)] and [the subdivision] or forest service [land] 

and [the subdivision]. And the residents that have [the subdivision’s perimeter fence on 

their property] are well aware of what’s going on.” When asked if he believes any of the 

subdivision’s perimeter fence has been built on property “physically outside the . . . 

subdivision,” he stated the question was “impossible to answer, because the boundary lines 

are based on old surveys.” Nevertheless, he stated the Board “does not intend to have [the 

subdivision’s perimeter] fence[] constructed on property that’s outside the boundaries of 

the . . . subdivision.” Bruce Bartley, another subdivision landowner and Chairman of 

HRISD’s Board in 2018, testified a substantial portion of the subdivision’s southern 

boundary and a small portion of its western boundary were fenced by a subdivision 

landowner at his own expense. Mr. Bartley stated the fence was on the landowner’s private 

property. Because the subdivision’s perimeter fence is located on landowners’ property 

and the covenants are binding on those landowners, the buck and pole fence covenant 

applies to the subdivision’s perimeter fence. It is undisputed that HRISD has never 

installed buck and pole fencing. 

[¶52] The district court found it material that HRISD is “a separate entity and a political 

subdivision of the state,” see Wyo. Stat. Ann. § 18-12-103(b) (LexisNexis 2021), and was 

specifically established to maintain the subdivision’s perimeter fence. We fail to see the 

relevance of these facts absent any legal authority that the State is immune from following 

protective covenants or any evidence HRISD was specifically exempted from following 

the protective covenants. When the landowners established HRISD to maintain the 

subdivision’s perimeter fence, they effectively directed it to maintain that fence on their 

behalf. HRISD has no independent ownership of the perimeter fence or the land it is on.

[¶53] HRISD offers an alternative argument to support judgment in its favor. It claims it 

would be inequitable to enforce the buck and pole fencing covenant. It says the subdivision 

borders BLM and United States Forest Service (USFS) land and is also part of an animal 

migration route. As a result, it coordinates with these agencies on fencing issues and has 

installed wire fencing around the subdivision’s perimeter which complies with the BLM 

and Wyoming Game and Fish Department’s rules and is wildlife friendly. 

[¶54] Under certain circumstances it may be inequitable to enforce a protective covenant. 

Kindler v. Anderson, 433 P.2d 268, 270 (Wyo. 1967) (citation omitted). A protective 

covenant will not be enforced if it is against public policy that is “well settled, unambiguous 

and not in conflict with another public policy equally or more compelling.” Arychuk v. 

Star Valley Ass’n, 997 P.2d 472, 479 (Wyo. 2000) (citations omitted). “Changes in the 

character of a neighborhood may [also] result in the discharge of a restrictive covenant, 

where the change is such that it is no longer possible to accomplish the original purpose 

intended by such restrictions.” 20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 

234 (footnotes omitted). “No hard-and-fast rule can be laid down as to when changed 
17

conditions have defeated the purpose of a restriction, and the inquiry depends upon the 

facts and circumstances presented in each case. The issue of whether and when a change 

in the character of a neighborhood has occurred, so as to entitle a property owner to relief 

from restrictive covenants, is a question of fact.” Id. § 235 (footnotes omitted). Finally, a 

protective covenant may be “abandoned by failure to enforce it when it is violated, the 

violations are ignored or acquiesced to, and the violations are ‘so great, or so fundamental 

or radical as to neutralize the benefits of the restriction to the point of defeating the purpose 

of the covenant. In other words, the violations must be so substantial as to support a finding 

that the usefulness of the covenant has been destroyed, or that the covenant has become 

valueless and onerous to the property owners.’” Steiger v. Happy Valley Homeowners 

Ass’n, 2010 WY 158, ¶ 29, 245 P.3d 269, 277-78 (Wyo. 2010) (quoting Hammons v. Table 

Mountain Ranches Owners Ass’n, Inc., 2003 WY 85, ¶ 14, 72 P.3d 1153, 1156 (Wyo. 

2003)) (other citation omitted).

[¶55] HRISD raised its alternative argument below, but the district court decided it was 

unnecessary to address because the covenants did not apply to HRISD. While we may 

affirm the district court on any ground apparent in the record, we decline to do so in this 

case. See Campbell Cnty. Mem’l Hosp. v. Pfeifle, 2014 WY 3, ¶¶ 30-31, 317 P.3d 573, 

581 (Wyo. 2014) (citation omitted). HRISD’s alternative argument involves “complex 

factual and legal issues” best left for the district court to address in the first instance on 

remand. Id.

C. The Winneys’ Alleged Violation of Covenant Regarding Roadway Easement 

[¶56] The Winneys argue the district court erred in granting summary judgment to HRISD 

on its counterclaim against them because, although Hoback Ranches, Inc., assigned HRISD 

the authority to enforce the protective covenants in 1995, that authority was no longer valid 

as of July 1, 2017, when § 18-12-141 became effective. According to them, because the 

right to enforce the covenants is a new “service” to be provided by HRISD not mentioned 

in the Petition for Formation, § 18-12-141 required it to be approved by a majority of the 

landowners after an election. The Winneys state there has been no such election and 

therefore HRISD does not have the authority to enforce the covenants, including their 

easement provision.

[¶57] The Winneys’ argument ignores that Mr. Jerup was also awarded summary 

judgment on this claim, and they have not appealed from that award. Moreover, the 

Winneys did not raise this argument in the district court, even though § 18-12-141 had been 

in existence for over a year when they made their arguments in the district court. “‘Issues 

raised for the first time on appeal generally will not be considered by this court unless they 

are jurisdictional or issues of such a fundamental nature that they must be 

considered.’” Gjertsen v. Haar, 2015 WY 56, ¶ 15, 347 P.3d 1117, 1123 (Wyo. 2015) 

(quoting Byrd v. Mahaffey, 2003 WY 137, ¶ 10, 78 P.3d 671, 674 (Wyo. 2003)). The 

Winneys’ argument is neither jurisdictional nor fundamental and will not be considered.
18

D. Mr. Jerup’s Alleged Violation of Covenant Regarding Commercial Activity

[¶58] The Winneys argue the district court clearly erred in finding Mr. Jerup used his 

property for residential purposes only and not for commercial purposes. They claim the 

trial evidence showed Mr. Jerup has operated a road maintenance and snowplowing 

business since 2015 and stores his business equipment on his property. He also maintains 

and refuels his equipment on his property; depreciates this equipment on his taxes, which 

he could not do unless the equipment is placed in service in connection with a trade or 

business activity; claimed a business expense for his purchase of the motor grader on his 

2015 taxes, which he could not do unless the grader was acquired for use in the active 

conduct of a trade or business; built a shop on his property to store his equipment; and 

moved equipment along Vista Ridge Lane 377 times between 2017-2019. The Winneys 

also fault the district court for finding that because Mr. Jerup’s road maintenance activities 

occur away from his property, commercial activity is not conducted on his property. They 

claim Mr. Jerup’s use of his property as the staging area from which his trucks are 

dispatched and his construction of a large building on his property to store his equipment 

are sufficient to show commercial activity occurs on his property. 

[¶59] The relevant protective covenant provides: “All lands covered by this deed shall be 

used for residential purposes only, and no commercial activity shall be conducted or 

permitted thereon.” The covenants do not define the terms “residential purposes” or 

“commercial activity.” At the summary judgment stage, the district court decided these 

terms were ambiguous but concluded that under its plain language, the covenant controlled 

only Mr. Jerup’s activities upon his property. 

[¶60] Once it decided the covenant was ambiguous, the district court was required to 

examine the extrinsic evidence presented at the bench trial to determine the parties’ intent 

in creating the covenant. Gayhart v. Corsi, 2020 WY 58, ¶ 15, 462 P.3d 904, 909 (Wyo. 

2020) (when a covenant is ambiguous, the court looks to extrinsic evidence to ascertain the 

parties’ intent). The court did not expressly do so. However, in finding that Mr. Jerup’s 

maintenance and repair of the motor grader in May 2018 constituted a de minimis technical 

violation of the covenants prohibiting commercial activity upon his property, the court 

determined such conduct was the only instance where Mr. Jerup “rendered services or 

performed work for others for payment [upon his property].” As a result, it appears the 

court decided the covenant prohibiting commercial activity prevented Mr. Jerup from 

rendering services or performing work on his property for others for profit. 

[¶61] The parties do not challenge the district court’s determination that the covenant is 

ambiguous or its apparent interpretation of the covenant. Indeed, the Winneys’ arguments 

on appeal are couched solely as challenges to the district court’s factual findings. 

Normally, we review a district court’s factual findings following a bench trial for clear 

error, reversing only if we are left with a “definite and firm conviction that a mistake has 
19

been committed.” Davis v. Harmony Dev., LLC, 2020 WY 39, ¶ 31, 460 P.3d 230, 240 

(Wyo. 2020) (quoting Ekberg v. Sharp, 2003 WY 123, ¶ 10, 76 P.3d 1250, 1253 (Wyo. 

2003)) (other citations omitted). “However, ‘[r]eviewing courts are free to make a 

determination as to the existence of ambiguity whether or not the parties agree one way or 

the other and whether or not the trial court has reached a conclusion one way or the other.’” 

Felix Felicis, LLC v. Riva Ridge Owners Ass’n, 2016 WY 67, ¶ 16, 375 P.3d 769, 774 

(Wyo. 2016) (quoting Cathcart v. State Farm Mut. Auto Ins. Co., 2005 WY 154, ¶ 18, 123 

P.3d 579, 588 (Wyo. 2005)). We review de novo the district court’s construction and 

interpretation of the covenant, including its determination that it is ambiguous. Id. 

(citations omitted).

[¶62] As stated above, in interpreting a covenant, our job is to determine and effectuate 

the intention of the parties, especially the grantor, Hoback Ranches, Inc. Wimer, ¶ 22, 369 

P.3d at 218 (citation omitted). We start with the covenant’s plain language to determine 

that intent. Gumpel, ¶ 29, 393 P.3d at 1290 (citations omitted). “Intention of the parties is 

to be determined from the entire context of the instrument, and not from a single clause.” 

Felix Felicis, LLC, ¶ 18, 375 P.3d at 775 (citations and quotations omitted). If the language 

used is unambiguous, we adhere to the covenant’s plain and ordinary meaning without 

resort to extrinsic evidence. Reichert, ¶ 16, 425 P.3d at 995 (citations omitted).

[¶63] Hoback Ranches, Inc., explicitly stated that the purposes of the protective covenants

are “to insure the use of the property for attractive residential purposes, to prevent 

nuisances, to prevent the impairment of the attractiveness of the property, [and] to maintain 

the natural environment and protect the ecology of the area” thereby “secur[ing] to each 

tract owner the full benefit and enjoyment of his respective tract.” To that end, the 

covenants require, among other things, “[a]ll lands covered by this deed [to] be used for 

residential purposes only, and no commercial activity shall be conducted or permitted 

thereon.” 

[¶64] The plain meaning of “[c]ommercial” is “occupied with or engaged in commerce or 

work intended for commerce” and “of or relating to commerce.” See

https://www.merriam-webster.com/dictionary/commercial. Black’s Law Dictionary 

defines it as “[o]f, relating to, or involving the buying and selling of goods; mercantile”; 

“[r]esulting or accruing from commerce or exchange”; “[e]mployed in trade; engaged in 

commerce”; “[m]anufactured for the markets; put up for trade”; “[o]f, relating to, or 

involving the ability of a product or business to make a profit”; and [p]roduced and sold in 

large quantities.” Commercial, Black’s Law Dictionary (11th ed. 2019). The plain 

meaning of “commerce” is “the exchange or buying and selling of commodities on a large 

scale involving transportation from place to place.” See https://www.merriamwebster.com/dictionary/commerce. Similarly, Black’s Law Dictionary defines 

“commerce” as “[t]he exchange of goods and services, esp. on a large scale involving 

transportation between cities, states, and countries.” Commerce, Black’s Law Dictionary 

(11th ed. 2019). These definitions are clear. The covenant prohibiting commercial activity 
20

prohibits a landowner from conducting or allowing the exchange of goods or services 

involving transportation from place to place on his property. 

[¶65] This interpretation is consistent with the stated purposes of the covenant, as well as 

the covenants as a whole. The covenants clearly seek to maintain the subdivision as 

residential. Not only is that one of the stated purposes of the covenants, the prohibition on 

“commercial activity” appears in the same covenant which limits the use of subdivision 

land to “residential purposes” only. Placing the term “commercial activity” in context with 

the requirement that the land be used only for “residential purposes” reveals “commercial 

activity” is limited to the exchange of goods or services involving transportation from place 

to place which is inconsistent with the residential use of one’s property and with the 

residential nature of the subdivision as a whole. 

[¶66] Given the clear scope of the covenant, the district court erred in deciding the 

covenant was ambiguous and Mr. Jerup’s maintenance and repair of the motor grader in 

May 2018 constituted a de minimis technical violation of the covenant prohibiting 

commercial activity upon his property. His maintenance and repair of the motor grader for 

HRISD did not constitute a violation of the covenants—de minimis, technical, or otherwise. 

This activity did not involve the exchange of goods or services involving transportation 

from place to place. Nor did it detract from Mr. Jerup’s use of his property as a residence 

or from the residential nature of the subdivision. That being said, the district court did not 

err in entering judgment in favor of Mr. Jerup because the evidence showed he did not 

violate the covenant prohibiting commercial activity on his property. Rather, the evidence 

unequivocally established Mr. Jerup’s property was residential both before and after he 

performed maintenance and snowplowing on the subdivision’s roads. 

[¶67] Mr. Jerup and his family live on his property year-round. It is their home. Mr. Jerup 

works full-time for WYDOT in Jackson, plowing and maintaining the public highways. 

He performs road maintenance on the subdivision’s roads for HRISD one day per week in 

the summer and snowplows those roads for the Winter Committee during the winter. 

HRISD and the Winter Committee pay Mr. Jerup for these services, and he reports that 

income on his tax returns as deriving from a business. He deducted the expense of 

purchasing the motor grader and depreciated the grader on his tax returns. He also 

maintains and plows Vista Ridge Lane, his and his neighbors only access to their 

properties. Mr. Jerup does not charge for or get paid to maintain and plow Vista Ridge 

Lane, although on occasion his neighbors have reimbursed him for his fuel or paid him in 

kind with gravel. To maintain and plow Vista Ridge Lane and the subdivision roads, he 

owns, stores, and fuels various pieces of heavy equipment on his property. Mr. Jerup 

recently began construction of a shop on his property to house his equipment. 

[¶68] The above activity does not involve the exchange of goods or services involving 

transportation outside the subdivision. Moreover, this activity is necessary to ensure his 

use of his property as a residence and to maintain the residential nature of the subdivision. 
21

Mr. Jerup testified Vista Ridge Lane must be maintained and plowed to ensure he and his 

neighbors to the north can safely access their homes. Dena Baker, one of his neighbors to 

the north of his property, agreed. Mr. Jerup also testified he would snowplow Rim Road, 

whether or not he was paid by the Winter Committee, so he and his family can leave the 

subdivision in the winter. Other landowners, including the Winneys, use Rim Road to 

access the public highway. Even Hoback Ranches, Inc., recognized the subdivision’s roads 

would need to be graded at least two times per year and the culverts kept clean for drainage

purposes. 

[¶69] Due to the remote location of the subdivision, the storage and fueling of equipment 

on one’s property are necessary and commonplace in the subdivision. Mr. Jerup testified 

that within a few weeks of trial, he had observed the following within 1-2 miles of his 

home: twelve properties with snow removal equipment; nine with tractors; six with flatbed 

or large trucks; twelve with backhoes; four with large non-recreational use trailers; five 

with dump trucks; five with large over-the-snow vehicles; two with tractors with tracks; 

and five with 55-gallon plus fuel storage tanks. Mr. Ryan testified he has observed over 

the past ten years at least twelve properties with 55-plus gallon fuel storage tanks; six with 

dump trucks; three with bulldozers; twelve with tractors; and seven or eight with backhoes. 

According to Mr. Jerup, “people that want to take care of themselves in such a rural area 

need equipment so they don’t have to rely on other people.” Mr. Ryan agreed: “[I]f you 

expect to drive a vehicle in and out of [the subdivision in the winter], I wouldn’t live there 

without a piece of equipment.” 

[¶70] Mr. Jerup’s construction of a shop on his property to garage his equipment is 

allowed by the covenants, which prohibit the construction of structures other than “single 

family dwellings, garage buildings, stables, and other structures incident to single family 

residential use of the tract.” (Emphasis added). Moreover, Mr. Jerup’s purpose in building 

the shop on his property is to house the equipment he utilizes to maintain his property as 

his residence.

[¶71] Mr. Winney testified he observed 138-148 heavy equipment moves on Vista Ridge 

Lane in 2017, 129 in 2018, and 109 in 2019. The Winneys also introduced various video 

and/or audio clips of Mr. Jerup allegedly driving his equipment past their home on Vista 

Ridge Lane. However, as the district court found, in some of the video clips it was unclear 

whether it was Mr. Jerup driving his equipment or some other person driving equipment

not belonging to Mr. Jerup. Indeed, Ms. Winney testified that on June 4, 2019, there were 

approximately nineteen dump truck moves on Vista Ridge Lane. She “assum[ed]” it was 

Mr. Jerup. 

[¶72] Even if it was Mr. Jerup driving the equipment, the Winneys failed to present any 

evidence these heavy equipment moves involved the exchange of goods or services outside 

the subdivision rather than activities to ensure the residential nature of Mr. Jerup’s property 

and the subdivision. Indeed, Mr. Jerup testified that in 2019, after several of his neighbors 
22

to the north lost their homes in the Roosevelt Fire, he hauled loads of gravel to fix Vista 

Ridge Lane so builders could access his neighbors’ properties. Ms. Baker confirmed this 

and testified the nineteen heavy equipment moves witnessed by Ms. Winney on June 4, 

2019, were likely Mr. Jerup assisting her in the rebuilding of her home which was lost in 

the fire. 

[¶73] The Winneys rely on Bowers Welding & Hotshot, Inc. (Bowers) v. Bromley, 699 

P.2d 299, 301 (Wyo. 1985), for the proposition that storing and fueling heavy equipment 

used for one’s business on one’s property and dispatching it from the property constitutes 

commercial activity. Bowers is not on point for two reasons. First, although the district 

court in Bowers found the defendants were conducting commercial activities on their 

property in the subdivision in violation of restrictive covenants requiring their property to 

be used for “residential purposes only,” the issue on appeal was whether the district court 

erred in finding defendants’ activities constituted a “nuisance.” Bowers, 699 P.2d at 300. 

Second, the evidence the district court relied on in Bowers to find the defendants were 

conducting commercial activities upon their property is distinguishable from that present 

in this case. In Bowers, the defendants conducted a welding, repair and hot shot business 

on their property; built a 60’ x 100’ commercial building on their property; rented 

equipment to their business; dispatched and directed truck traffic from their property; 

loaded, unloaded and stored drill pipe on their property; stacked and stored drilling rigs on 

their property; stored and used numerous pieces of pipe, sheet metal, and scrap iron on 

their property for use in their welding business; constructed and fabricated large water 

tanks on their property; used employees on their property and dispatched them therefrom; 

provided employee parking on their property; and parked and used numerous commercial 

vehicles, including trucks, trailers, forklifts, and welding equipment, on their property. Id.

at 306-07. These activities, unlike Mr. Jerup’s, involved the exchange of goods or services 

outside the subdivision and there is no indication they were necessary to support the 

residential use of the defendants’ property or to maintain the residential nature of the 

subdivision. 

CONCLUSION

[¶74] The district court correctly concluded HRISD’s taxing authority was not limited by 

the 8 mill levy limitation contained in the Petition for Formation and did not err in entering 

judgment in favor of Mr. Jerup because he did not violate the protective covenant 

prohibiting commercial activity on his property. However, the district court erred in

deciding the buck and pole fence covenant does not apply to the subdivision’s perimeter 

fence. The Winneys waived their argument that HRISD lacked the authority to enforce the 

covenants against them. 

[¶75] We affirm in part, reverse in part, and remand to the district court to consider in the 

first instance HRISD’s argument that it would be inequitable to enforce the buck and pole 

fence covenant.