No. 83-74 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

.MAURICE C. GOSNAY & PAP4LA C. GOSNAY, 

Plaintiffs and Respondents, 

BIG SHY OWNERS ASSOCIATION, AND 

ROBERT J. FRITZ, et al. , 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable W. W. Lessley, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

f.lorrow, Sedivy & Olson, Bozeman, Montana 

Edmund Sedivy and Terrence Schaplow argued, 

Bozeman, Montana 

For Respondents: 

1,.4oore, Rice, 0' Connell & Ref ling, Bozeman, Montana 

Barry OIConnell argued, Bozeman, Montana 

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Submitted: June 9, 1983 

Decided: ~uly 28, 1983 

Filed: JUL 2 8 1983 

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Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion 

of the Court. 

Big Sky Owners Association and the individual members of 

the Big Sky Architectural Committee appeal the October 7, 

1982, judgment of the Eighteenth Judicial District Court 

which allowed Maurice and Pamla Gosnay to construct a stable 

and keep horses on their property and barred the 

Architectural Committee from ordering removal of the fence 

the Gosnays built around their property. 

Sweetgrass Hills is a subdivision in the Big Sky, 

Montana area and is owned by Big Sky of Montana, Inc. 

Protective covenants were issued by Big Sky of Montana, Inc., 

to control the uses to which the subdivision can be put. 

Covenant 1 (A) (i) of the protective covenants grants to the 

Big Sky Architectural Committee the express authority to 

approve, change or overrule the location of any structure on 

any residential lot in the subdivision. Other protective 

covenants provide guidelines to be followed by the Committee 

when exercising its authority. The Gosnays purchased land by 

a warranty deed which is subject to the protective covenants. 

Therefore, those covenants control in this appeal. Heritage 

Heights Home Owners Ass'n v. Esser (1977), 115 Ariz. 330, 565 

P.2d 207. 

Ma.urice and Pamla Gosnay were shown land in the 

Sweetqrass Hills Subdivision by realtor David Hyde. The 

Gosnays became interested in ten acres of land referred to as 

Tract 11, the largest tract in the subdivision. 

Gosnays expressed to Hyde an interest in constructing a 

stable and boarding their horses on the land. The Gosnays 

own the Karst Camp and use their Belgian Draft horses to pull 

sleighs in the winter. Mr. Hyde testified that after 

reviewing the prohibitive covenants with the Gosnays, he 
informed them that a decision regarding the horses and stable 

would be up to the Architectural Committee. Mr. Gosnay 

testified that Mr. Hyde told him there would be no problems, 

under the prohibitive covenants, in having horses and a 

stable on that land. 

The Gosna.ys purchased Tract I1 and began to plan a 

jackleg fence to completely enclose their property. The 

Architectural Committee refused to grant Gosnays permission 

to build the fence. Construction of the fence was commenced 

in November of 1981, despite lack of approval. 

On November 9, 1981, Maurice and Pamla Gosnay filed a 

declaratory judgment seeking to judicially establish the 

authority of the Big Sky Owners Association (BSOA) to 

designate Gosnays' land as an area where stables could be 

constructed under the applicable prohibitive covenants. BSOA 

filed a complaint in December 1981, seeking a preliminary 

injunction for the removal of the fence Gosnays had begun 

constructing. Gosnays then filed a third party complaint on 

January 13, 1982, against the members of the Big Sky 

Architectural Committee, attempting to establish the validity 

of the fence construction. 

The actions were consolidated and a bench trial was held 

September 7 and 8, 1982, in the District Court of the 

Eighteenth Judicial District. On October 8, 1982, a judgment 

was entered allowing Gosnays to keep their fence and horses 

and to build a stable. Gosnays were also awarded $5,000.00 

in attorneys' fees on November 17, 1982. BSOA and the 

Architectural Committee now appeal those judgments. We 

vacate the judgment of the District Court. 

Four issues are presented to this Court for our review: 

1. Did the District Court err in allowing Gosnays' 

jackleg fence to remain on their property? 
2. Did the District Court err in allowing Gosnays to 

build a stable on their property? 

3. Did the District Court err in allowing horses to be 

kept on the property? 

4 Did the District Court err in ordering defendants to 

pay Gosnays' attorneys,, fees? 

The following are the primary Prohibitive Covenants 

relevant to issues one, two and three: 

"NOW, THEREFORE, Big Sky does hereby establish, 

dedicate, declare, publish and impose upon the 

premises the following Protective Covenants which 

shall run with the land and shall be binding upon 

and be for the benefit and value of Big Sky and all 

persons claiming under it, its grantees, successors 

and assigns and shall be for the purpose of 

maintaining a uniform and stable value, character, 

architectural design, use and development of the 

premises. These Protective Covenants shall apply 

to the entire premises and to all improvements 

placed or erected thereon unless otherwise 

specifically excepted and shall have perpetual 

existence unless terminated by law or amended as 

herein provided. 

1. - USE 

"F. TRACTS I AND I1 

"a. Tracts I and I1 shall be used for single 

family residences only. No buildings or 

improvements shall be placed, constructed, 

reconstructed, altered or remodeled on any site 

except to provide for a single family dwelling with 

an attached or detached garage. Any plans for any 

dwelling on either tract shall provide for 

off-street parking for at least two vehicles. 

"b. Tract I may be further subdivided by the owner 

thereof into not more than three separate, smaller 

tracts for residential use only and for the 

erection of one single family residence with 

attached or detached garage on each separate tract, 

each such small tract to be not less than one acre 

in size. 

"c. Tract I1 may similarly be further subdivided 

by the owner thereof into not more than four 

separate, smaller tracts for residential use only 

and for the erection of one single family residence 

with attached or detached garage on each separate 

tract, each such smaller tract to be not less than 

one acre in size. 
3. ARCHITECTURAL COMMITTEE 

"D. No building, construction, reconstruction, 

alteration, remodeling, landscaping, parking, 

fence, wall or other improvement shall be placed, 

constructed, erected, repaired, restored, 

reconstructed, altered, remodeled, added to or 

maintained on any lot or tract until building 

drawings, plans and specifications (which must have 

been prepared by a licensed architect for all 

construction, reconstruction, alteration or 

remodeling), and such other information as the 

Committee may reasonably require, including without 

being limited to, colors, building materials and 

models, have been submitted to, and approved by, a 

majority of the Committee in writing; nor may the 

same be commenced until the Committee shall have 

issued a permit allowing for such improvements. I1 . . . 

8. ANIMALS 

"Animals such as dogs, cats, birds or horses are 

allowed in the subdivision as pets only and so long 

as they do not constitute a nuisance to others. 

Kennels, stables or other facilities for the 

keeping or retention of animals shall be restricted 

to areas so designated by the Committee. The 

commercial breeding, care, raising or keeping of 

any animal is forbidden. If a particular animal or 

animals shall, in the discretion of the Committee, 

become a nuisance, the Committee shall have the 

authority to require that the same be kept tethered 

or confined on the owners property and the 

Committee may further require that when the said 

animal or animals are taken from the said property 

such animals must then be kept on a leash or bridle 

and must be under the owner's control at all 

times. I' 

The same rules of construction apply to interpreting 

these prohibitive covenants as apply to interpreting 

contracts. Nakis v. Cross (1980), 246 Ga. 658, 272 ~.~.2d 

312. Therefore, we must read the covenants as a whole in 

order to ascertain their meaning, rather than reading any one 

covenant or part of a covenant in isolation. Rumph v. Dale 

Edwards, Inc. (1979), 183 Mont. 359, 367, 600 ~.2d 163, 168. 

Where, as here, the language of the covenants is clear and 

explicit, that language will govern our interpretation of the 

covenants as a whole. " [W] here the words are plain, 

unambiguous, direct and certain and admit of but one meaning, 

then it is the duty of this Court to declare what the terms 
of the covenants contain . . . " Higdem v. Whitman (1975), 

167 Mont. 201, 208, 536 P.2d 1185, 1189. 

DID THE DISTRICT COURT ERR IN ALLOWING THE FENCE? 

Construction of a fence requires prior approval by the 

Architectural Committee - covenant 3 (D) . The Committee' s 

discretion to approve or disapprove a fence must be governed 

by the prohibitive covenants and must be reasonably 

exercised. To do otherwise would be an abuse of discretion 

by the Committee. Melson v. Guilfoy (Mo.App. 1980), 595 

S.W.2d 404. 

The Architectural Committee did not abuse its discretion 

when it refused Gosnays permission to build their fence. 

Gosnays' fence is contrary to Big Sky's overall plan for 

"openness." No other tract or lot in the subdivision is 

totally enclosed by a fence. Fences which have been allowed 

by the Architectural Committee have been "border" fences for 

landscaping purposes and an 8' by 10' cyclone fence around a 

dog pen. These facts support the Committee's decision and 

also negate the assertion that, by allowing other fences, the 

Committee has waived the prohibitive covenant regarding 

fences. The District Court's judgment allowing Gosnays" 

jackleg fence to remain on their property is clearly 

erroneous and we reverse it. 

DID THE DISTRICT COURT ERR IN ALLOWING STABLES? 

Construction of a stable requires that the Architectural 

Committee designate the area(s) in which stables can be 

built. Covenant 8. Prohibitive covenant 1 (F) (a) restricts 

buildings on Tract I1 (Gosnays' tract) to single family 

residences and garages. Therefore, the Architectural 

Committee acted properly in denying permission to construct a 

stable on Tract 11. 
This decision is not to be construed as a complete ban 

of stables from the Sweetgrass Hills Subdivision. Stables 

are permitted, but may be located only in areas designated by 

the Architectural Committee. In the past, those areas have 

been in the subdivision's agricultural tracts. Stables are 

not allowed on tracts which are limited by the covenants to 

single family residences and garages. 

DID THE DISTRICT COURT ERR IN ALLOWING HORSES? 

The District Court found that horses, as pets, could be 

kept on plaintiffs' tract. This action could only be 

justified if the Architectural Committee abused its 

discretion in banning the horses. See Exhibit 29, a letter 

from the Committee's attorney, states: 

"Certainly horses are allowed in the subdivision as 

pets provided they are not a nuisance to others. 

It would be very likely that if a horse was kept 

year-round without proper stables it would be a 

nuisance." 

On appeal appellants5 brief argues valiently in support 

of this nuisance determination: 

"Additionally, these horses, and their ensuing, 

resounding, egregious divestitures of abdominal gas 

echoing through the hills and vales of this 

otherwise peaceful area, closely akin to the point 

blank discharge of a double-barreled shotgun, have 

utterly no place in this quiet, residential hamlet 

of Big Sky. 'I 

While the loquacious author is guilty of hyperbole the 

nuisance premise is difficult to dispute. Certainly we are 

unable to say that the Committee, in finding unhoused horses 

to be a nuisance, abused its discretion as a matter of law. 

ATTORNEYS' FEES 

Covenant 14 (D) governs attorneys' fees and provides in 

relevant part: 

"D. Actual costs, expenses and reasonable 

attorneys' fees connected with correcting, 

remedying, abating, preventing or removing any 
violation or threatened violation of these 

covenants incurred either through litigation, entry 

or self-help shall constitute a claim by the owner 

or the Committee initiating such action against the 

owner of the property which is the subject of such 

violation or threatened violation. Such claim 

shall not, however, exceed Five Thousand Dollars 

($5,000.00) for any one claim and shall be 

enforcable through appropriate court action." 

Pursuant to this covenant, appellants are entitled to recover 

from Gosnays the attorneys' fees generated by this 

litigation in an amount not to exceed $5,000.00. 

This matter is reversed and remanded to the District 

Court with instructions to issue to Gosnays a mandatory 

injunction to remove the jackleg fence enclosing their land 

and to conduct a hearing on the reasonable attorneys' fees to 

be awarded appellants. 

We concur: 
Justice Shea specially concurring: 

I join the opinion of the Court but have a few comments 

on the findings and conclusions entered in this case. 

In their appeal the defendants also claim that the trial 

court adopted virtually verbatim if not entirely verbatim, 

the proposed findings and conclusions of the plaintiff's 

counsel. Plaintiff's counsel does not dispute this claim. 

From time to time the trial courts have been quite critical 

of the decisions of agencies and boards where the reasons for 

their decisions are not set forth in the orders of the 

agencies involved. It seems to me that the trial courts have 

really no reason to be critical of agency decisionCwhen the 

trial courts simply rubber stamp the proposed findings and 

conclusions of the party that they believe should win the 

lawsuit. This practice hardly bespeaks of a careful, 

considered analysis of the evidence and the law. 

The parties, counsel, and the public are entitled from 

the trial courts to more than the duplicating of proposed 

findings and conclusions presented by a partisan to the 

cause. Of course I know that my view of the evils of 

verbatim parroting of findings and conclusions does not hold 

sway for too long in this Court, but I will continue to 

adhere to this view.