Opinion
No. 71-015
Decided April 11, 1972.
Land subject to restrictive covenant prohibiting its use "directly or indirectly in any restaurant operation" was used as customer parking lot and access way by prepared food outlet. From issuance of injunction prohibiting such use, defendant appealed.
Affirmed
1. COVENANTS — Restrictive — Use — "Directly or Indirectly" — Food Business — Prohibited — Parking — Customer Access. Restrictive covenant that prohibits use of real property "directly or indirectly in any restaurant operation" is clear and unambiguous, and prohibited uses includes its use for customer access and parking by defendant who operated prepared food business on adjacent property.
2. Restrictive — Clear and Unambiguous — Extrinsic Evidence — Properly Refused. Since restrictive covenant applicable to property of defendant was clear and unambiguous, trial court properly refused to consider extrinsic evidence as to its meaning.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
Fuller and Evans, Mackintosh Brown, for plaintiffs-appellees.
Phelps, Hall Keller, Alan Gary Dunn, for defendants-appellants.
The defendants-appellants all have interests in a business known as McDonald's or in the land on which the business is conducted. They have a common interest in the reversal of the judgment of the trial court, and they shall be referred to as "McDonald's." The Plaintiffs-appellees all have interests in a business known as Burger King, and they shall be referred to collectively as "Burger King."
Both McDonald's and Burger King are engaged in the business of selling prepared food products to the public. For some time prior to March 6, 1969, McDonald's operated its business in Arvada, Colorado, on a tract of land which fronted on Ralston Road. On that date, Burger King acquired title to a tract of land which also fronted on Ralston Road and which was situated adjacent to McDonald's premises. Thereafter, Burger King constructed a building and an asphalt parking lot on a portion of the land which it had acquired. The remaining unimproved portion of the Burger King land, which shall be referred to as Tract A, consists of approximately .312 acres and is so situated that it adjoins both the properties occupied by Burger King and by McDonald's. Burger King subsequently conveyed Tract A by a warranty deed which contained the following restrictive covenant:
"UNDER AND SUBJECT to the restriction that the said premises shall and will not be used or be permitted to be used directly or indirectly in any restaurant operation or prepared food advertising or sale, nor the display of any trade mark, trade name or symbol characteristic of any food products supplier or marketer. This restriction shall be effective and run with the land for a period of twenty (20) years from the date of the proposed deed and shall be enforceable by Seller or Seller's assigns. This restriction shall cease and be of no effect in the event that the Seller or Seller's assigns cease operating the adjacent property to the East as a Burger King Restaurant. . . ."
McDonald's thereafter acquired title to Tract A from Burger King's grantee with actual and constructive notice of the restrictive covenant contained in the deed. McDonald's then paved Tract A, painted parking lines on the pavement, and erected bases for outdoor lighting. McDonald's then made Tract A available to its customers for the parking of their cars and as a way of access to the premises on which it operated its business. Burger King then commenced this action to enjoin such use as a violation of the restrictive covenant.
The trial court found that McDonald's was using Tract A for customer parking and access and that such use was prohibited by the restrictive covenant. The court restrained and enjoined McDonald's from using or permitting the land to be used, directly or indirectly for restaurant purposes, and, particularly, from permitting the use of said land by any customers of McDonald's for access purposes or for parking or any other purpose.
The issue on appeal is whether McDonald's use of the property for customer parking and access is prohibited by the restrictive covenant.
Burger King contends that the restrictive covenant is clear and unambiguous on its face and that the words "used directly or indirectly in any restaurant operation" include the use for customer access and parking. On the other hand, McDonald's contends that the restriction in the covenant is a limitation on use stated in general terms and that the words employed do not refer expressly to the activities complained of, namely, access and parking. It contends that the covenant must be strictly construed and that to construe the covenant to prohibit use of the land for access and parking would be an impermissible extension of the covenant by implication. We adopt Burger King's construction of the covenant and affirm the judgment of the trial court.
In Burns Realty Trust Co. v. Mack, 168 Colo. 1, 450 P.2d 75, our Supreme Court construed a covenant which stated that "none of said lots shall be . . . occupied for other than private single family residential purposes, and no store, business house or gasoline station shall be erected thereon or used and occupied thereof." It held that the covenant prevented the subject property from being used as a roadway related to a commercial enterprise. In commenting upon the rules applicable to the interpretation of restrictive covenants, the court stated:
"It is urged that covenants creating restrictions upon the free use of land are to be strictly construed against the limitation. This rule may or may not today have the sanctity that it has possessed in the past. In any event, it has no application when the language is definite in its terms. One must follow the dictates of plain English."
[1] The covenant under consideration is clear and unambiguous, and the language used in the covenant forbids the use of the land for parking and access when such use is an incident to the prohibited use of the land in "any restaurant operation" or "prepared food sale."
A similar result was reached in Bennett v. Consolidated Realty Co., 226 Ky. 747, 11 S.W.2d 910, 61 A.L.R. 453. In that case, the operator of a restaurant and dance hall on premises unburdened by building restrictions purchased three lots in a subdivision adjacent to his place of business and permitted his patrons to use them for parking purposes. It was held that this use was precluded by a restriction in the deed to the lots which restriction provided that no trade or business should be permitted or maintained on the property.
In Starmount Co. v. Greensboro Memorial Park, Inc., 233 N.C. 613, 65 S.E.2d 134, 25 A.L.R.2d 898, a case cited with approval by our Supreme Court in Burns Realty Trust Co. v. Mack, supra, it was held that a cemetery corporation, which acquired title to a lot subject to a restrictive covenant that the lot should be used only for residential purposes, truck farming, and poultry raising, could not use the lot as a driveway or passageway from the highway to the cemetery.
McDonald's cites the case of Siciliano v. Misler, 399 Pa. 406, 160 A.2d 422, 80 A.L.R.2d 1253, as reaching a contrary result. The restrictive covenant involved in that case was entirely different from the one under consideration here, and the ruling in that case is not applicable here.
[2] McDonald's contends that the reasonableness of its interpretation of the restrictive covenant would have been shown by facts concerning the prior use of the land for access to McDonald's and by facts showing Burger King's failure to complain about, object to, or stop such prior use. It alleges that the court's failure to consider these facts constitutes error. Since the covenant was clear and unambiguous, the court properly refused to consider extrinsic evidence as to its meaning. Bennett v. Consolidated Realty Co., supra.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.