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Present: All the Justices 

ROBERT E. TURNER, III 

v. Record No. 031950 OPINION BY JUSTICE DONALD W. LEMONS 

 June 10, 2004 

MICHAEL A. CAPLAN, ET AL. 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

 In this appeal, we consider the proper construction of 

certain restrictive covenants and exceptions thereto. Also, 

we consider whether the pasturing of a horse on certain lots 

within the subdivision in question constitutes a nuisance. 

I. Facts and Proceedings 

 In 1975, Robert E. Turner, III ("Turner") acquired a 

101.4 acre tract of land in Pittsylvania County, Virginia, and 

thereafter established a subdivision known as Windermere. 

This dispute concerns the use of Lots 4B, 5, 6, and 7 in 

Section D of the subdivision which will be referred to herein 

as the "pasture." 

 In 1979, Turner recorded a declaration of protective 

covenants, restrictions, and conditions (the "Agreement") of 

which relevant portions provide: 

1. All of the lots above described shall 

be used exclusively for residential 

purposes. 

. . . . 

3. Only one single family dwelling may be 

erected on any lot, but in addition 

thereto, there may be erected a car garage 
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and other structures incidental to the use 

of such property for residential purposes. 

. . . . 

5. No nuisance shall be maintained or 

permitted on any of said lots. 

 6. There shall be no raising or harboring 

of pigs, goats, sheep, cows, or any other 

livestock or poultry on said lots, with the 

exception of a usual domestic pet. This 

restriction shall not be applicable to Lots 

Nos. 1-7, inclusive, Section D. 

Covenant 10 further specifies that should a court invalidate 

any one of the Agreement's covenants, all others remain in 

full force and effect. 

 Turner sold most of Windermere's lots; however, he 

retained ownership of the pasture. Michael and Carol Caplan 

("the Caplans") and Grady and Martha Carrigan ("the 

Carrigans") reside on lots adjoining the pasture. 

 At some time in the early 1980's, Turner kept a horse on 

the pasture for approximately six months. Again, in the late 

1990's a horse was periodically kept on the pasture. Finally, 

since 2002 a horse has been kept periodically on the pasture 

depending upon the time of year and the weather. 

 In 2002, the Caplans filed a bill of complaint for 

injunctive relief with the Circuit Court of Pittsylvania 

County asking the court to permanently enjoin Turner from 

placing a horse on the pasture. Thereafter, the trial court 

granted the Carrigans' motion to intervene in the lawsuit. 
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 The trial court held that the maintenance of a horse on 

the pasture violated the Agreement because it was inconsistent 

with the intent to create a residential subdivision and 

because the trial court held that keeping a horse at that 

location constituted a nuisance. The trial court entered a 

permanent injunction forbidding Turner from keeping a horse on 

the pasture. Turner appeals the adverse judgment of the trial 

court and alleges that the trial court erred in its judgment 

that maintaining a horse on the pasture was inconsistent with 

the intent of the Agreement, that the specific exception from 

the ban upon livestock for the pasture was unreasonable, and 

that keeping a horse on the pasture was a nuisance. 

II. Standard of Review 

 The trial court's order presents findings of fact and 

law. We will not disturb its factual findings unless they are 

plainly wrong. The trial court's interpretation of the 

restrictive covenants is, however, a question of law, and we 

review those conclusions de novo. See Wilson v. Holyfield, 

227 Va. 184, 187, 313 S.E.2d 396, 398 (1984). 

III. Analysis 

 The trial court found that Turner intended to create an 

exclusively residential neighborhood when he formed the 

Windermere subdivision. The trial court further concluded 
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that placing livestock on any of Windermere's lots is 

inconsistent with this intent. 

 Covenant 1 of the Agreement is clear and unambiguous in 

restricting Windermere's lots exclusively for residential 

purposes;*

 however, Covenant 1 is subject to an equally clear 

and unambiguous exception in Covenant 6. Covenant 1 states 

that all of the lots "shall be used exclusively for 

residential purposes." Covenant 6 prohibits raising or 

harboring of livestock or poultry on the lots but further 

states that, "[t]his Restriction shall not be applicable to 

Lots Nos. 1 - 7, inclusive, Section D," which includes the 

pasture. We must construe the Agreement as a whole and, if 

possible, interpret its provisions consistently with one 

another. First American Title Ins. Co. v. Seaboard Sav. & 

Loan Ass'n, 227 Va. 379, 386, 315 S.E.2d 842, 846 (1984); Tate 

v. Tate, 75 Va. 522, 527 (1881). In First American Title, we 

said: 

 it is the duty of the court to construe the 

[Agreement] as a whole, and in the 

performance of this duty it will not treat 

as meaningless any word thereof, if any 

meaning, reasonably consistent with other 

parts of the [Agreement], can be given.

Id. at 386, 315 S.E.2d at 846 (quoting Pilot Life Ins. Co. v. 

Crosswhite, 206 Va. 558, 561, 145 S.E.2d 143, 146 (1965)). 
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 Adhering to this principle, we hold that Covenant 1's 

residential purpose, when read in context with Covenant 6, 

does not exclude raising or harboring livestock or poultry. 

Such activity is prohibited under Covenant 6 for all lots 

except Lots 1 through 7 of Section D, which includes the lots 

comprising the pasture. Turner's reservation of this right is 

clearly expressed. 

 Further, Turner states that the trial court erred in 

holding that exempting the pasture from the covenant 

forbidding raising or harboring livestock or poultry is 

unreasonable. While we are aware of case law holding that use 

of property may not be unreasonably restricted, see Hercules 

Powder Co. v. Continental Can Co., 196 Va. 935, 939, 86 S.E.2d 

128, 131 (1955), counsel and the trial court cite no cases 

applying the concept of "unreasonability" to the exemptions 

specifically allowing the use of restricted land for 

particular purposes. 

 In holding the exemption unreasonable, the trial court 

apparently relied on the fact that Turner, as the original 

grantor/owner, is the only Windermere landowner exempted from 

Covenant 6's restriction. This assumption is incorrect 

because the exception to restrictions in Covenant 6 applies to 

 *

 Covenant 3 further suggests residential purposes by 

restricting construction to "one single family dwelling . . . 

and other structures incidental to residential purposes." 
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Lots 1 through 7 of Section D. The Carrigans, who are 

appellees herein, own Lots 1 and 2B. 

 Additionally, the property owners knew at the time they 

purchased the lots, and assented to Windermere's covenants, 

that Lots 1 through 7 had been exempted from the livestock 

restriction. Presumably, they considered the restriction and 

its exemptions reasonable or they would not have purchased 

their lots. On this record, we hold that the trial court 

plainly erred in concluding that the exemption here was void 

for unreasonableness. 

 Finally, Turner asserts that the trial court erred in 

holding that "to allow the placement of livestock on lots in 

the subdivision would also create a nuisance in violation of 

Restriction No. 5." Of course, the law of nuisance exists 

independently of restrictive covenants. The fact that a 

prohibition upon maintaining a nuisance is found in a covenant 

adds nothing to analysis of whether the facts presented 

constitute a nuisance. 

 The case of Bragg v. Ives, 149 Va. 482, 140 S.E. 656 

(1927), involved the proposed intrusion of a funeral home into 

a residential neighborhood. In the course of determining 

whether the trial court erred by dismissing the bill for 

injunctive relief upon demurrer, we considered what is 

necessary to sustain a cause of action for nuisance. Quoting 
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decisions from other jurisdictions and secondary authorities 

with approval, we stated: 

"In all such cases the question is whether 

the nuisance complained of will or does produce 

such a condition of things as, in the judgment of 

reasonable [persons], is naturally productive of 

actual physical discomfort to persons of ordinary 

sensibilities and of ordinary tastes and habits, 

and as, in view of the circumstances of the case, 

is [un]reasonable and in derogation of the rights 

of the complainant." 

. . . . 

 "The decisions establish that the term nuisance, in 

legal parlance, extends to everything that endangers life 

or health, gives offense to the senses, violates the laws 

of decency, or obstructs the reasonable and comfortable 

use of property." 

Id. at 496-497, 140 S.E. at 660 (citations omitted). See also 

Martin v. Moore, 263 Va. 640, 648, 561 S.E.2d 672, 677 (2002); 

Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661, 

667 (1992). 

 Although the trial court does not expressly use the term 

"nuisance per se," the language of its order embraces the 

concept. As we have previously noted, "while there is some 

confusion in the books as to the meaning of the term nuisance 

per se, the tendency of modern times is to restrict its use to 

such things as are nuisances at all times and under all 

circumstances." Price v. Travis, 149 Va. 536, 547, 140 S.E. 

644, 647 (1927). 
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 The trial court's order is too broad and improperly 

expresses its judgment in terms that can only be interpreted 

as a holding of nuisance per se. First, the order refers to 

"livestock" when the pasturing of a horse is the issue. 

Second, the order refers to "lots in the subdivision" when the 

only lots in question constitute the "pasture." Finally, the 

trial court erred in its entry of a judgment that effectively 

holds that the mere "placement" of livestock, including a 

horse, on the lots at issue constitutes a nuisance at all 

times and under all circumstances. 

IV. Conclusion 

 We hold that the trial court erred in its interpretation 

of the legal effect of the covenants in the agreement. 

Further, we hold that the trial court erred in its entry of a 

judgment that is too broad in its application and, in effect, 

holds that the mere placement of a horse on the pasture 

constitutes a nuisance per se. We will reverse the judgment 

of the trial court and enter final judgment for Turner. 

Reversed and final judgment.