No. 83-74 INTHE SUPREME COURTOF THE STATEOF MONTANA 1983

.MAURICEC. GOSNAY & PAP4LAC. GOSNAY, Plaintiffsand Respondents,

BIG SHYOWNERSASSOCIATION, AND ROBERT 

### J. FRITZ,et al.

### , Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, The HonorableW. 

### W. Lessley, Judgepresiding.

COUNSELOF RECORD: ForAppellants: f.lorrow,Sedivy & Olson, Bozeman,Montana Edmund Sedivy and Terrence Schaplowargued, Bozeman,Montana For Respondents: 1,.4oore, Rice, 0' Connell & Refling, Bozeman,Montana Barry OIConnellargued,Bozeman, Montana

-- -. Submitted: June 9,1983 Decided: ~uly 28, 1983

Filed: 

### JUL

## 2

## 81983

-- ClerkMr. Justice Frank B. Morrison,Jr. delivered the Opinion of the Court. Big Sky OwnersAssociation 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 Gosnaysbuilt around theirproperty. Sweetgrass Hills is a subdivision in the Big Sky, Montana area and is owned by Big Sky of Montana, Inc. Protective covenants were issuedby 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 structureon any residential lot in the subdivision. Other protective covenantsprovide guidelines to be followed by the Committee when exercising its authority. TheGosnayspurchased land by

awarranty deed which is subject to theprotective covenants. Therefore, those covenants control in this appeal. Heritage Heights Home OwnersAss'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 Gosnaysbecame 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 theKarst Camp and use their Belgian Drafthorses topull sleighs in the winter. Mr. Hyde testified that after reviewing the prohibitive covenants with the Gosnays, heinformed 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.yspurchased 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 fencewas commenced inNovember 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 fenceconstruction. The actions were consolidated and abench trialwas held September 7 and 8, 1982, in the District Court of the Eighteenth JudicialDistrict. 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 judgmentof the DistrictCourt. Four issues are presented to this Court for our review: 1. Did the District Court err in allowing Gosnays' jackleg fence to remainon their property?2. 

### Did the District Court err in allowing Gosnays to build a stableon their property? 3. 

### Did the District Court err in allowing horses to be kepton 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 thebenefit and value of Big Sky and all persons claiming under it, itsgrantees,successors and assigns and shall be for the purpose of maintaining a uniform and stablevalue, 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 hereinprovided. 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-streetparking for at least two vehicles. "b. Tract I

### may be further subdividedby 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 separatetract, 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 forthe 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 (whichmust have been prepared by a licensed architect for all construction, reconstruction, alteration or remodeling), and such other information as the Committeemay reasonably require,includingwithout 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 subdivisionaspets only and so long as they do not constitute a nuisance to others. Kennels, stables or other facilities for the keepingor retentionof animals shallbe restricted to areas so designated by the Committee. The commercial breeding, care, raising or keeping of any animal is forbidden. If aparticular animal or animals shall, in the discretion of the Committee, become a nuisance, the Committee shall have the authority to require that the samebe 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 animalsmust thenbe kepton 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 theirmeaning, rather than reading any one covenant or part of a covenant in isolation. Rumph v. Dale Edwards, Inc. (1979),183Mont. 359, 367, 600 ~.2d 163, 168. Where, as here, the language of the covenants is clear and explicit, that languagewill governour interpretationof the covenants as a whole. 

### "[W] here the words are plain, unambiguous, direct and certain and admitof but onemeaning, then it is the duty of this Court to declarewhat the termsof the covenants contain

# .. . " Higdem v. Whitman (1975), 167Mont. 201, 208, 536 P.2d 1185, 1189. DID THE DISTRICT COURT ERR INALLOWING 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 otherwisewould be an abuse of discretion by the Committee. Melson v. Guilfoy (Mo.App. 1980), 595 S.W.2d 404. TheArchitectural Committeedid 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. Fenceswhich 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 THEDISTRICT COURT ERR INALLOWING STABLES? Construction of a stable requires that theArchitectural 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 Committeeacted properly in denyingpermission 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

arepermitted, butmay be located only in areas designatedby 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 residencesand garages. DID THEDISTRICT COURTERR IN ALLOWING HORSES? The District Court found that horses,aspets, 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 theCommittee's attorney, states: "Certainlyhorses are allowed in the subdivisionas 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 appellants5brief argues valiently in support of this nuisance determination: "Additionally, these horses, and their ensuing, resounding, egregious divestituresof abdominalgas 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 findingunhoused horses to be a nuisance, abused its discretion as a matter of law. ATTORNEYS' FEES Covenant 14(D) 

### governs attorneys' fees and provides in relevantpart: "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 reasonableattorneys' 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 findingsand conclusionsentered 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 boardswhere the reasons for their decisions are not set forth in the orders of the agencies involved. It seems tome that the trial courtshave 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 evidenceand 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 thisview.