DA 06-0414

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 265

DENNIS MICKLON,

 Plaintiff and Appellant,

 v.

ARTHUR DUDLEY and LYNN C. DUDLEY,

 Defendants and Appellees.

APPEAL FROM: District Court of the Nineteenth Judicial District,

In and For the County of Lincoln, Cause No. DV-2005-85

Honorable Michael C. Prezeau, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William A. Douglas, Douglas Law Firm, Libby, Montana

For Appellees:

James D. Reintsma, Reintsma Law Firm, Libby, Montana

Submitted on Briefs: May 9, 2007

 Decided: October 22, 2007

Filed:

__________________________________________

Clerk

October 22 2007
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Justice James C. Nelson delivered the Opinion of the Court.

¶1 Dennis Micklon appeals from the decision of the District Court for the Nineteenth

Judicial District, Lincoln County, holding that Arthur and Lynn C. Dudleys’ 3,000-

square-foot shop did not violate a restrictive covenant limiting lot use within the parties’ 

subdivision to residential use. We reverse.

¶2 We restate the issue on appeal as follows: Did the District Court err in concluding

that the shop on the Dudleys’ lot did not violate the subdivision’s restrictive covenant

mandating that “[n]o lot shall be used for any purpose except residential use”?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Lincoln West Subdivision (the subdivision) is a 10-lot subdivision located in 

Lincoln County, Montana, near the town of Libby. On October 20, 1983, the 

subdivision’s developers (William L. Anderson, Karen M. Anderson, and Fred D. Wolff) 

filed the subdivision’s Declarations of Conditions, Covenants and Restrictions (restrictive 

covenants) with the Lincoln County Clerk and Recorder. Most relevant to this appeal is 

paragraph 6 of the restrictive covenants, which states: “No lot shall be used for any 

purpose except residential use.”

¶4 In 1994, Micklon purchased Lot 6 of the subdivision. The Dudleys purchased 

Lots 3 and 4 in 2004. Lot 3 was a vacant field at the time. Situated on Lot 4 was a 

2,000-square-foot, three-bedroom, two-bathroom house, with an attached two-car garage. 

After purchasing Lots 3 and 4, the Dudleys constructed what the District Court termed “a 

mammoth shop” on Lot 3. The court described the shop, which is the only structure on 

Lot 3, as follows:
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The shop is 50’ x 60’ feet, or 3,000 square feet, not counting a loft which 

adds approximately another 840 square feet of interior space. The shop is 

sided with steel and is windowless. Inside the building is located a 36’ x 

60’ garage, a 14’ x 20’ office/TV room, a 10’ x 14’ bathroom, a 14’ x 20’ 

wood shop/parts room. The garage area is accessed from the outside by 

two 14’ tall garage doors. One bay of the garage has a “walk under pit” to 

allow servicing a motor home from underneath, and the other bay has a 

hydraulic lift, which allows smaller vehicles to be hoisted into the air for 

servicing. The loft houses a “gun room,” where Mr. Dudley loads 

ammunition and stores guns.

The court noted that “there is a fairly steady flow of traffic from friends dropping by the 

shop to visit and occasionally to have Mr. Dudley assist them in working on their 

vehicles.” The court also noted that the area around the shop is landscaped with trees, 

shrubs, and a raised garden area. 

¶5 On June 21, 2005, Micklon, along with George “Doc” Sargent and Patricia 

Sargent (who were the owners of Lot 2) filed suit in the District Court. They sought an 

order requiring the Dudleys to remove the shop from Lot 4 and permanently enjoining the 

Dudleys from violating the restrictive covenants.

¶6 On July 8, 2005, the Dudleys filed a motion to dismiss, which the District Court 

denied on August 31, 2005. The Dudleys subsequently filed an answer and counterclaim 

on September 19, 2005, asserting that Micklon and the Sargents were in violation of a 

number of the restrictive covenants themselves. The District Court held a bench trial on 

May 2, 2006, and issued its Findings of Fact, Conclusions of Law, and Judgment on May 

4, 2006. The court noted that the Dudleys “have more vehicles than their attached twocar garage could possibly house.” Specifically, the court found that the Dudleys had “at 

least three ‘regular’ vehicles, a large motor home, two ATVs, and a dune buggy.” The 
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court also found that the shop was not serving a commercial purpose and that the shop 

qualified as a “residential use,” given that the Dudleys were actively using the shop in 

conjunction with their residential dwelling on Lot 4. The court concluded, therefore, that 

the shop did not violate paragraph 6 of the restrictive covenants. The District Court also 

concluded that Micklon was not in violation of the restrictive covenants. This appeal by 

Micklon followed.1 

STANDARD OF REVIEW

¶7 We review a district court’s findings of fact to determine whether the findings are 

clearly erroneous. M. R. Civ. P. 52(a); Denton v. First Interstate Bank of Commerce, 

2006 MT 193, ¶ 18, 333 Mont. 169, ¶ 18, 142 P.3d 797, ¶ 18. A district court’s findings 

are clearly erroneous if the findings are not supported by substantial credible evidence, if 

the court has misapprehended the effect of the evidence, or when a review of the record 

leaves this Court with a definite and firm conviction that a mistake has been made. 

Denton, ¶ 18.

¶8 We review a district court’s conclusions of law to determine whether the district 

court’s interpretation and application of the law is correct. Sunday v. Harboway, 2006 

MT 95, ¶ 17, 332 Mont. 104, ¶ 17, 136 P.3d 965, ¶ 17; In re A.N.W., 2006 MT 42, ¶ 28, 

331 Mont. 208, ¶ 28, 130 P.3d 619, ¶ 28.

 

1

In its pretrial order dated April 13, 2006, the District Court stated that “Plaintiff Sargent has 

sold his lot and no longer has standing to be a party Plaintiff,” and in its Findings of Fact, 

Conclusions of Law, and Judgment, the court noted that “[Sargent] is no longer a party to the 

lawsuit.” Presumably, the court’s reference to “Sargent” includes both George “Doc” Sargent 

and Patricia Sargent. In any event, we note that neither of the Sargents is a party to the instant 

appeal. 
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DISCUSSION

¶9 Did the District Court err in concluding that the shop on the Dudleys’ lot did not 

violate the subdivision’s restrictive covenant mandating that “[n]o lot shall be 

used for any purpose except residential use”?

¶10 When interpreting documents containing restrictive covenants, we apply the same 

rules of construction as are applied to contracts. Milltown Addition Homeowner’s Ass’n 

v. Geery, 2000 MT 341, ¶ 11, 303 Mont. 195, ¶ 11, 15 P.3d 458, ¶ 11. We read the 

restrictive covenants as a whole in order to ascertain their meaning. Newman v. Wittmer, 

277 Mont. 1, 6, 917 P.2d 926, 929 (1996); § 28-3-202, MCA. Furthermore, the language 

of the covenants is to be understood in its ordinary and popular sense. Hillcrest 

Homeowners Ass’n v. Wiley, 239 Mont. 54, 56, 778 P.2d 421, 423 (1989); § 28-3-501, 

MCA. At the same time, however, restrictive covenants are to be strictly construed. 

Higdem v. Whitham, 167 Mont. 201, 208-09, 536 P.2d 1185, 1189-90 (1975) (observing 

that “[t]he overriding policy of individual expression in free and reasonable land use 

dictates that restrictions should not be aided or extended by implication or enlarged by 

construction”). 

¶11 Where the language used is plain and unambiguous, the language governs our 

interpretation. Milltown, ¶ 11. Here, there is no serious contention that the language of 

paragraph 6, “no lot shall be used for any purpose except residential use,” is ambiguous. 

The Dudleys refer to this language at one point as “vague”; however, they offer no 

argument that the language is “susceptible to at least two reasonable but conflicting 

meanings.” See Mary J. Baker Revoc. Trust v. Cenex Harvest, 2007 MT 159, ¶ 20, 338 

Mont. 41, ¶ 20, 164 P.3d 851, ¶ 20. Accordingly, we will proceed to apply the language 
6

as written. In this regard, we note that the construction and interpretation of paragraph 6 

is a question of law. See Baker Revoc. Trust, ¶ 19. 

¶12 Micklon offers a sole argument in support of his claim that the District Court erred 

in concluding that the Dudleys’ shop did not violate paragraph 6: Based on our holding 

in Hillcrest, a shop built on a lot, without a dwelling house on the same lot, violates a 

restrictive covenant limiting the lot’s use to residential purposes. Micklon contends that 

Hillcrest leaves no “wiggle room” for the District Court to conclude that the Dudleys’ 

shop did not violate paragraph 6. The Dudleys respond that the District Court correctly 

determined that their shop was residential in use and that substantial evidence existed at 

the time of trial to support this finding. The Dudleys claim that the shop is “an important 

and continually used residential building to the Dudleys.” 

¶13 In support of its conclusion that the Dudleys’ shop did not violate paragraph 6, the 

District Court cited and discussed two cases in which this Court held that structures 

similar to the Dudleys’ shop did violate restrictive covenants—Hillcrest and Tipton v. 

Bennett, 281 Mont. 379, 934 P.2d 203 (1997). In Hillcrest, the defendants constructed a 

steel-sided garage on their subdivision lot and the homeowners’ association sued to 

enforce a restrictive covenant stating “[n]o lot shall be used except for single family 

residential purposes, only one residence per lot and no lot shall be subdivided.” Hillcrest, 

239 Mont. at 55, 778 P.2d at 422. Although the defendants planned on constructing a 

residence on the lot in addition to the garage, this was never accomplished. Hillcrest, 239 

Mont at 55, 778 P.2d at 422. In light of the covenant restricting lot usage to “single 

family residential purposes,” we concluded that “a garage, by itself, is not consistent with 
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‘single family residential purposes’ when the garage is not used in conjunction with a 

residential dwelling” on the same lot and that the defendants had violated the restrictive 

covenants by building the garage and then failing to build, within a reasonable time

thereafter, a residential dwelling to accompany the garage. Hillcrest, 239 Mont. at 57, 

778 P.2d at 423. In reaching this conclusion, we observed that “courts have held that a 

garage built on a lot without a dwelling house on the same lot violates a restrictive 

covenant when the covenant specifically limits a lot’s use to ‘residential purposes.’ ” 

Hillcrest, 239 Mont. at 56, 778 P.2d at 423 (emphasis added). We then quoted, with 

approval, the following passage from a Washington Court of Appeals case: 

“A private garage is a proper appurtenance necessary to the enjoyment of a 

dwelling house and does not violate a ‘for residence purposes only’

covenant [cites omitted]. However, if the garage is placed on an adjoining 

lot, it is no longer deemed to be appurtenant and does violate such a 

restriction even though used in connection with a residence on an adjoining 

lot [cites omitted].”

Hillcrest, 239 Mont at 57, 778 P.2d at 423 (alterations in original) (quoting Sandy Point 

Improvement Co. v. Huber, 613 P.2d 160, 163 (Wash. App. 1980)). 

¶14 In Tipton, the defendants purchased six lots and constructed a 3,200-square-foot 

storage building on one of the lots. Tipton, 281 Mont. at 380, 934 P.2d at 204. The 

plaintiffs sued, claiming the structure violated a restrictive covenant requiring “[t]hat the 

real property hereof shall be used strictly for residential purposes and no business, trade 

or manufacture of any sort or nature shall be conducted thereon.” Tipton, 281 Mont. at 

380, 934 P.2d at 204. While the defendants described the building as a large garage, the 

district court found that “it looked like a storage building rather than a residential 
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garage.” Tipton, 281 Mont. at 381, 934 P.2d at 204. In Tipton, we took into account

Hillcrest and Sandy Point and affirmed the district court’s conclusion that the storage 

building violated the restrictive covenant. Tipton, 281 Mont. at 382-83, 934 P.2d at 205. 

Specifically, we stated:

With or without a residence, a 3,200 square foot storage building is not an 

appurtenance necessary to the enjoyment of a dwelling house. The building 

violates the covenant, not only because it stands alone without a dwelling, 

but also due to the fact that a 3,200 square foot storage building is not 

consistent with “residential purposes.”

Tipton, 281 Mont. at 383, 934 P.2d at 206. Thus, under Hillcrest, Tipton, and the 

language of paragraph 6, the Dudleys’ shop had to be an appurtenance necessary to the 

enjoyment of a dwelling house and, in addition, had to be located on the same lot as that 

dwelling house. 

¶15 The District Court, however, viewed the dispositive issue somewhat differently. 

Specifically, given our statement in Hillcrest that “a garage, by itself, is not consistent 

with ‘single family residential purposes’ when the garage is not used in conjunction with

a residential dwelling,” Hillcrest, 239 Mont. at 57, 778 P.2d at 423 (emphasis added), and 

our statement in Tipton that “a 3,200 square foot storage building is not an appurtenance 

necessary to the enjoyment of a dwelling house,” Tipton, 281 Mont. at 383, 934 P.2d at 

206 (emphasis added), the District Court stated that “[t]he question here is whether the 

Dudleys’ use of lot 3 is sufficiently different from the uses [at issue in Hillcrest and 

Tipton] to justify a different result.” In this regard, the court determined that the 

Dudleys’ shop was “actively incorporated into the Dudleys’ daily routine” and “there is 

nothing in the covenants to prevent the Dudleys from owning many vehicles and from 
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having a state of the art facility in which to service those vehicles.” On this basis, the 

court concluded that the Dudleys’ shop was “actively ‘used in conjunction with a 

residential dwelling’ ” (quoting Tipton, 281 Mont. at 382, 934 P.2d at 205), and, thus, 

was “an appurtenance” to the Dudleys’ residence. The court acknowledged that the 

Dudleys’ shop was nearly the same size as the storage building in Tipton, but the court 

distinguished the shop as being “not just an amorphous ‘large storage building’ ” 

(quoting Tipton, 281 Mont. at 382, 934 P.2d at 205). Thus, the court concluded that the 

shop did not violate the “residential use” restriction contained in paragraph 6.

¶16 However, in reaching this conclusion, the District Court overlooked our 

agreement, in Hillcrest, with the following two rules of law: “a garage built on a lot 

without a dwelling house on the same lot violates a restrictive covenant when the 

covenant specifically limits a lot’s use to ‘residential purposes,’ ” Hillcrest, 239 Mont. at 

56, 778 P.2d at 423 (emphasis added), and a garage that is used in connection with a 

residence is not appurtenant to that residence “ ‘if the garage is placed on an adjoining 

lot,’ ” Hillcrest, 239 Mont at 57, 778 P.2d at 423 (emphasis added) (quoting Sandy Point, 

613 P.2d at 163). Here, the Dudleys’ shop stood alone on Lot 3, while their residential 

dwelling was located on the adjoining Lot 4. Under the rules set out in Hillcrest, this is a 

plain violation of paragraph 6, which states: “No lot shall be used for any purpose except 

residential use.”

¶17 The District Court’s contrary conclusion that the Dudleys’ shop had a “residential 

use” rested entirely on the shop’s association with the Dudleys’ residential dwelling; in 

other words, the court made no finding that the shop, on its own, served a residential 
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purpose. However, under Hillcrest, because the shop was located on its own lot without 

an accompanying dwelling, it had to serve a residential purpose independent of the 

Dudleys’ dwelling on an adjoining lot.

2

 Accordingly, we reject the Dudleys’ argument 

that because their 3,000-square-foot shop is used in conjunction with their residential

dwelling—though admittedly located on an adjoining lot—their situation is 

distinguishable from that in Hillcrest and warrants a different result.

¶18 In short, we conclude that the District Court erred in its determination that the 

Dudleys’ shop does not violate paragraph 6 of the restrictive covenants limiting lot use to 

“residential use.”

CONCLUSION

¶19 We hold that when a restrictive covenant limits a subdivision lot’s use to 

“residential use,” a non-residential structure that is placed on that lot without an 

accompanying residential dwelling on the same lot violates the covenant, notwithstanding 

the fact that the structure is used in conjunction with a residential dwelling on an 

adjoining lot. Accordingly, because the Dudleys’ shop was constructed on a lot 

unaccompanied by a dwelling house on the same lot, the District Court erred in 

concluding that the shop did not violate the subdivision’s restrictive covenant limiting all 

lots to “residential use.” 

¶20 Reversed.

 

2 We note, in this regard, that paragraph 3 of the restrictive covenants states: “No basement, 

tent, shack, garage, barn, log house, mobile home or other outbuilding shall be erected at any 

time to be used as a residence.”
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/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER