L. Alvin Hunt
Hunt & Wilson
Charleston, West Virginia
Fred D. Clark
Charleston, West Virginia
Co-Counsel for Appellee
Michael T. Chaney
Kay, Casto, Chaney, Love & Wise
Charleston, West Virginia
Counsel for Appellants
This Opinion was delivered Per Curiam.
"'The fundamental rule in construing covenants and restrictive
agreements is that the intention of the parties governs. That
intention is gathered from the entire instrument by which the
restriction is created, the surrounding circumstances and the
objects which the covenant is designed to accomplish.' Wallace v.
St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)." Syl.
Pt. 2, Allemong v. Frendzel, 178 W. Va. 601, 363 S.E.2d 487 (1987).
James R. Cottrill, Mary Jean Cottrill, and Connie Irvin appeal
from a final judgment of the Circuit Court of Putnam County holding
that property owned by the Appellants is subject to restrictive
covenants limiting the use of property within the Teays Farms
subdivision. Such ruling disallows the continued operation of a
horse stable and riding ring on the Appellants' property and
enjoins the Appellants from using roadways within the subdivision
for access to their property in furtherance of any business
interests. The Appellants contend that the lower court erred in
concluding that the restrictive covenants prohibit the use of the
Appellants' property for operation of a stable and riding ring. We
agree with the Appellants' contentions and hereby reverse the
decision of the Circuit Court of Putnam County to the extent that
it prohibited the Appellants' operation of a stable and prevented
them from using the roadways within the subdivision in furtherance
of their business activity.
In 1974, T. P. Phillips and his wife incorporated Teays Farms,
Inc. (hereinafter "the corporation"). The corporation subsequently
acquired approximately 385 acres of undeveloped property in Putnam
County. In 1976, Mr. Phillips and architect T. A. Galyean, Jr.,
incorporated a non-stock, non-profit corporation, Teays Farms
Owners Association, Inc. (hereinafter "owners association"). The
purpose of the owners association, specified in the articles of
incorporation, was "to provide for the maintenance of recreation
facilities, common areas and other community features of such land
in the Subdivision as may be conveyed to the Association."
The property was developed in phases from 1976 through 1986.
The corporation recorded various maps or plats depicting lots
within the Teays Farms subdivision. The corporation also recorded
declarations of covenants, conditions, restrictions, reservations,
and easements. Each declaration referred to and was applicable to
only a specific section or phase of the Teays Farms subdivision.
From 1976 through 1986, the corporation sold many of the lots
depicted on the recorded maps. The corporation reserved, however,
the fee in all lanes, drives, and roads.
In 1977, Mr. Phillips constructed a stable and riding ring on
a four-acre tract within the original 385 acres acquired. Although
the four-acre tract in question is within the 385 acres, it was
never depicted as part of the subdivision on any recorded map.
From 1977 through 1985, Mr. Phillips occupied, used, and maintained
the stable and riding ring. The owners association made no
contribution to the maintenance of that facility. Mr. Phillips
boarded horses for individuals, some of whom lived in the
subdivision. Mr. Phillips also conducted the corporation's
business and a realty company from the barn.
Mr. Phillips testified that the four-acre tract in question was never intended or considered to be a part of the common area or park area of the subdivision. Moreover, Mr. Phillips testified that he never intended the restrictive covenants to apply to the property on which the barn and riding ring were located.
In 1983, the corporation executed a deed of trust for the
benefit of the Chemical Bank and Trust Company of South Charleston,
conveying all corporate property, with the specific exception of
the lots that had previously been conveyed and the lanes, drives,
roads, and park areas within each section or phase of the
subdivision. The deed did, however, grant the trustees the right
to use such roadways. After a 1987 default on the payment of the
note, the deed of trust was foreclosed upon and all property
conveyed, including the four-acre tract in question, passed to the
trustees of the Chemical Bank and Trust Company. By deed dated
January 15, 1988, the bank, then the National Bank of Commerce of
South Charleston, conveyed the property to the Appellants for
$100,000. Furthermore, by quit claim deed dated September 7, 1988,
the corporation quit claimed to the Appellants all of its interest
in the property and the improvements thereon.
In January 1988, the Appellants began using the barn, riding
ring, and surrounding area for the operation of a boarding stable.
The Appellants plan to construct an addition to the barn to provide
an indoor riding area, approximately twenty-one more stalls, and
ancillary facilities. Access to the barn can only be achieved by
use of Thoroughbred Road, one of the roadways within the Teays
In February 1988, a civil action was filed by the owners
association seeking a declaration that the owners association,
rather than the Appellants owned the barn, riding ring, and the
four-acre tract. The lower court rejected that contention but
ruled that the restrictive covenants applicable to the Teays Farms
subdivision also restricted the usage of the Appellants' property.See footnote 1
The Appellants were therefore enjoined from conducting or
permitting to be conducted any business enterprise on the tract in
question. The Appellants were also enjoined from using the
roadways within the subdivision in furtherance of any business
activity conducted on that tract.
In their assignments of error on appeal, the Appellants
contend that the lower court erred in its determination regarding
the application of the restrictive covenants and the Appellants'
right to use the roads within the subdivision.
This matter is presently before this Court due to an
unfortunate occurrence; the developers of this 385 acre tract
failed to explicitly identify the raison d'etre of the property on
which the stable and riding ring were located or concisely define
the relationship between that four-acre tract and the subdivision.
The developers failed to provide any definite indication of
whether this four-acre tract in question was to be considered a
part of the subdivision subject to the restrictive covenants, a
part of the subdivision not subject to the restrictive covenants,
or simply a recreational area adjacent to the subdivision. This
absence of any clear characterization of the property created a
situation in which the four-acre tract, if considered within the
subdivision, has technically been in violation of the subdivision's
restrictive covenants since the origin of both the stable and the
subdivision. Now, several years later, we are placed in the
unenviable position of characterizing the property in question and
its relationship to the subdivision.
When all tangible indicia of the legal status of property and
the application of restrictive covenants fail to provide a
resolution, attention must be shifted to the original intention of
the parties. See Allemong v. Frendzel, 178 W. Va. 601, 363 S.E.2d
487 (1987). In syllabus point 2 of Allemong, we explained the
following: "'The fundamental rule in construing covenants and
restrictive agreements is that the intention of the parties
governs. That intention is gathered from the entire instrument by
which the restriction is created, the surrounding circumstances and
the objects which the covenant is designed to accomplish.' Wallace
v. St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)."
178 W. Va. at 602, 363 S.E.2d at 488. Fortunately, the developer,
T. P. Phillips, was available to testify regarding the original
conception of the subdivision. Mr. Phillips informed the lower
court that the four-acre tract in question was not intended to be
a common area or park area of the subdivision and was not subject
to the restrictive covenants applicable to the lots sold for
residential purposes. Mr. Philipps' testimony in this regard is
reinforced by the fact that the four-acre tract was not depicted on
any of the plats or maps to which the restrictive covenants were
specifically made applicable. The existence of a stable and riding
ring was initially emphasized in advertising literature designed to
attract potential home buyers to the subdivision. The stable and
riding ring were to provide homeowners with the unique opportunity
to board their horses near their homes. What was originally
intended as an advantage of residing in this subdivision has now
become a significant issue of contention.
In resolving this dispute, we must be cognizant of the
homeowners' desire for continuity and adherence to the restrictive
covenants. However, we must also recognize the ownership rights of
the Appellants and must not subjugate their rights to the
restrictive covenants of the subdivision if those restrictive
covenants were not specifically made applicable to the four-acre
tract. Mr. Phillips, the individual in perhaps the best position
to explain the original conception of the subdivision, testified
that he believed the stable area to be within the subdivision but
not subject to the restrictive covenants. Furthermore, it appears
from advertising disseminated during sales of individual lots that
the stable area was considered either part of the subdivision or
related to the subdivision in some manner. However, no filed court
document specifically indicates that the four-acre tract is
property to which the restrictive covenants are applicable. Again,
that is consistent with Mr. Phillips' testimony regarding his
original conception of the relationship between the stable area and
We conclude that the owners association is certainly entitled
to reasonable assurance that the property in question will not be
converted into some intolerable business activity. Yet the
Appellants must also be provided with the opportunity to use their
property in an appropriate manner. As explained above, the final
analysis convinces us that while no filed document specifically
includes this four-acre tract as subject to the restrictive
covenants, this property must, as a practical matter, be considered
as part of the Teays Farms subdivision. Consequently, we believe
that while the restrictive covenants are not enforceable against
this property, its status as part of the subdivision prevents
unrestricted usage by the Appellants.See footnote 2 The Appellants must be
limited to the use to which the property had already been placed,
specifically a stable area and riding ring. With regard to any
additions to the stable as contemplated by the Appellants, we
conclude that such additions must be built, operated, and
maintained in such a manner as not to constitute a nuisance in a
pleasant residential community.
We do not believe that this limitation imposes an unreasonable
burden upon the Appellants; nor do we believe that this resolution
imposes an unreasonable burden upon surrounding property owners
whose lots have been specifically identified as subject to the
restrictive covenants. As a part of the Teays Farms subdivision
and desirous of use of the subdivision's roadways, the Appellants
must contribute their fairly apportioned share to road maintenance
and will be permitted to use the subdivision's roadways. To the
extent that this opinion alters or contradicts the determination of
the lower court, the lower court's decision is reversed.
Footnote: 1The restrictive covenants that prohibited buildings other than single family dwellings, stated all properties should be used only for residential purposes, and prohibited owners from conducting any business, profession, or trade on the properties.
Footnote: 2Unrestricted use would obviously also be prohibited by prevailing nuisance law. See generally Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989) regarding what constitutes a nuisance. See also Kahlbaugh v. A-1 Auto Parts, 182 W. Va. 692, 391 S.E.2d 382 (1990) regarding the determination of what constitutes a residential area from which offensive business activity may be excluded. Kahlbaugh explains that whether the business will be permitted depends upon the surrounding facts and circumstances of each particular case, considering such factors as the type of locality, the tradition of business activity, and the particular acts complained of. 182 W. Va. at 694, 391 S.E.2d at 384.