FILED

March 24, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

JAMES M. RUTH and wife ) KNOX COUNTY

ANNA RUTH; TOM BURNETTE ) 03A01-9805-CH-00167

and wife BRENDA BURNETTE; )

CHARLIE SMITH and wife )

LIVONIA SMITH )

) HON. H. DAVID CATE,

Plaintiffs-Appellants ) CHANCELLOR

)

v . )

 )

COVE CREEK, LLC )

)

Defendant-Appellee ) REVERSED AND REMANDED

RICHARD R. RUTH, JR., OF CHATTANOOGA FOR APPELLANTS

LEWIS S. HOWARD, JR., OF KNOXVILLE FOR APPELLEE

O P I N I O N

 Goddard, P.J. 

The question presented by this appeal is whether the

Chancellor was correct in holding the restrictions as to lots in

Woodland Acres Subdivision did not preclude its use as a

commercial for profit fire hall.

Plaintiff James M. Ruth and others, owners of lots in

the Woodland Acres Subdivision, brought suit against Cove Creek,

LLC, the owner of lot 1, block C, which Cove Creek had leased or
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proposed to lease to Rural/Metro Corporation for use as a fire

hall.

The following provision is included in the restrictions

applicable to the subdivision:

4. LAND USE AND BUILDING TYPE - All lots in the tract

shall be known and designated as residential lots. No

structure shall be erected, altered, placed or

permitted to remain on any lot other than one detached

single family dwelling not to exceed two stories in

height and a private garage for not more than two cars

and usual domestic servants quarters.

The Chancellor reasoned that the restrictions in using

the language “known and designated as residential lots” was

insufficient to restrict the lots for that purpose, and instead

found that the owners should have used language such as “may be

used only for residential purposes,” or to specifically exclude

all commercial uses.

In reaching his conclusion the Chancellor relied upon

the case of Parks v. Richardson , 567 S.W.2d 465 (Tenn.App.1977),

wherein Judge Drowota, then a member of this Court, pointed out

two rules of law and construction in this type case. One is that

“a restrictive covenant, being in derogation of the free use and

enjoyment of property, will be strictly construed against the

restriction and in favor of the reasonable use of the property,

so that only uses clearly prohibited will be held precluded by

such a covenant.” We point out, however, that the first rule
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Judge Drowota mentioned is that “a restrictive covenant will be

given a fair and reasonable meaning according to the intent of

the parties, which may be determined with reference both to the

language of the covenant and to the circumstances surrounding its

making.”

It seems clear to us that the language of the

restriction, particularly the second sentence, leaves no doubt

that it was the intent of the parties that the lots be used for

residential purposes, and while it is true that the language

might have been more precise we believe a fair reading of the

entire restriction leads inevitably to this conclusion.

In reaching our determination we have not overlooked

the fact that the property is zoned to permit the use

contemplated by Cove Creek. However, this is not determinative. 

We also note that other landowners, including some of the

Plaintiffs, violated the restriction by erecting various

outbuildings and multiple car garages. We do not believe,

however, that Cove Creek has borne its burden to show that such

violations are so wide spread as to vitiate the restrictive

covenant the Plaintiffs seek to sustain. Scandlyn v. McDill

Columbus Corp. , 895 S.W.2d 342 (Tenn.App.1994).
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For the foregoing reasons the judgment of the Trial

Court is reversed and the cause remanded for collection of costs

below, which are, as are costs of appeal, adjudged against Cove

Creek.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

 (Not Participating) 

Don T. McMurray, J.

________________________________

Charles D. Susano, Jr., J.