implying that considering respective harms and equities is appropriate when a defendant did not have “prior knowledge and direct notice” of the restriction
How later courts described this case
- implying that considering respective harms and equities is appropriate when a defendant did not have “prior knowledge and direct notice” of the restriction
- the breach of a covenant is sufficient reason to enjoin its violation and a complainant need not show substantial comparative injury
Written by the judges who cited it.
The opinion
JUSTICE VAN DEUSEN, dissenting:
I respectfully dissent from the majority’s opinion. The restrictive covenant in question in this matter provided in pertinent part as follows:
“No boat, airplane, trailer, truck, house trailer, motorized recreational vehicle, commercial vehicle, or snowmobile shall be stored (permanently or temporarily) in the open on any of the Property, 999 The Parkway located between the pavement and the Lot Line Front of each Lot shall not be used for the parking of any private or commercial vehicles, boats, trailers, trucks, recreational vehicles, or snowmobiles.”
The majority finds that the record indicates that the defendant had violated the restrictions in the covenant by parking his boat and snowmobiles in the driveway at times other than when he was actually engaged in loading or unloading. I agree that the evidence did disclose that the defendant parked his boat on his driveway in the summer and his snowmobiles on his driveway in the winter for brief periods of time between uses, usually overnight. I cannot agree with the majority that the defendant thereby violated the restrictive covenant in question.
Restrictions which interfere with the free use of property are not favored in law. (Arndt v. Miller (1957), 14 Ill. App. 2d 424, 427 .) It is also well established that the primary purpose of the construction of a deed is to ascertain the intentions of the parties, which is gathered by giving effect to every word and rejecting none if it can be done without violating any positive rule of law; it is equally well recognized in the law that restrictive covenants are strictly construed in favor of the full and unlimited legitimate use of property and, where there is any doubt, the matter must be resolved in favor of natural rights and against restrictions. (Watts v. Fritz (1963), 29 Ill. 2d 517, 521 .) The intent of the parties must be determined from the language of the agreement alone where it is not ambiguous, and the language is not rendered ambiguous simply because the parties do not agree upon its meaning. (See Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 839 .) The intention of the parties is to be determined from the language of the agreement, and words should be given their common and generally accepted meaning. See Crane v. Mulliken (1980), 86 Ill. App. 3d 1076, 1081 .
The words used in the covenant in question are common words with a generally accepted meaning, and I can discern no ambiguity arising from their use in this matter. The verb “store” or “storing” means “to lay up against a future need; to hoard” and the verb “park” or “parking” means “to leave a [vehicle] in a certain place temporarily.” (Webster’s Dictionary of the English Language Unabridged (1977).) Implicit in the meaning of “store” or “storing” is a giving up of any present intent to use until sometime in the future when the item or matter is removed from storage; whereas, the meaning of “park” or “parking” carries with it a continuous, but interrupted, intent to use.
The simple and readily understood language of the covenant prohibited the defendant from storing his boat and snowmobiles in the open anywhere on his property at any time. It also advised him in no uncertain language that he could not park his boat or his snowmobiles on the parkway of his property. It did no more than that. It did not prohibit him from parking his boat or snowmobiles on or alongside his driveway. Therefore, I would find that the defendant’s actions did not violate the restrictions in the covenant.