# Lenhoff v. Birch Bay Real Estate, Inc.

> Court of Appeals of Washington · December 4, 1978 · 22 Wash. App. 70

URL: https://www.frixlaw.com/law-library/cases/9611392

## Case

- **Full name:** Angus W. Lenhoff, Et Al, Respondents, v. Birch Bay Real Estate, Inc., Et Al, Appellants
- **Court:** Court of Appeals of Washington
- **Decided:** December 4, 1978
- **Citations:** 22 Wash. App. 70; 587 P.2d 1087; 1978 Wash. App. LEXIS 2761
- **Precedential status:** Published
- **Opinion:** Concurring in part by Soule
- **Judges:** Ringold, Soule
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9611392

## Opinion text

Soule, J.
(concurring in part; dissenting in part) — I am unable to fully agree with the opinion of the majority. I do agree that the mandatory injunction should be dissolved and the case remanded for tried on damages even if the covenants were breached. I further agree that no ambiguity can be read into the covenants merely because housing technology has advanced since the covenants were drafted. However, I cannot agree that the problem can be solved by substituting the conjunction "and" for "but" in the last portion of the covenants set forth below.
To me, ambiguity is created by those portions of the covenants which state:
(1) No buildings shall be erected or placed upon the above described property until the design, plans, specifications and locations thereof have been approved in writing by the grantors, and said buildings shall be constructed in accordance with the plans and specifications as approved by the grantors.,
(2) ... and no building or structures shall be moved in and set upon any of said property but that all construction in said addition must be of new construction.
(Italics mine.) '
Not only are paragraphs (1) and (2) inconsistent with each other, but the last portion of paragraph (2) is independently ambiguous.
Ambiguity has been defined as "Duplicity, indistinctness, or uncertainty of meaning of an expression used in a writ *79 ten instrument." Black's Law Dictionary 105 (4th ed. rev. 1968).
Where language in a written instrument is reasonably susceptible of more than one construction, it is ambiguous. Ladum v. Utility Cartage, Inc., 68 Wn.2d 109 , 411 P.2d 868 (1966); Farmers Ins. Co. v. U.S.F.&G. Co., 13 Wn. App. 836 , 537 P.2d 839 (1975).
If paragraph (2) had simply stated that "no building or structures shall be moved in and set upon any of said property," I would have no difficulty in concluding that the covenant is not ambiguous and that a mobile home is prohibited by its terms. While arguably, a mobile home is not a "building" until the component portions are joined, each section is a "structure." RCW 46.04.302. See Grant County v. Bohne, 89 Wn.2d 953, 957 , 577 P.2d 138 (1978). Ambiguity is created by the addition of the language "but that all construction in said addition must be of new construction." The word "but" has many meanings. A common meaning is "on the contrary" or "on the other hand." Webster's Third New International Dictionary (1964), and, in my opinion, such a meaning is reasonable in the context of the covenant.
A fundamental rule in the construction of a written instrument is that every word or phrase must be presumed to have been employed with a purpose and must be given meaning and effect whenever possible. Ball v. Stokely Foods, Inc., 37 Wn.2d 79 , 221 P.2d 832 (1950); Hollings-worth v. Robe Lumber Co., 182 Wash. 74 , 45 P.2d 614 (1935). Words should not be treated as surplusage if it can be avoided.
Under the doctrine of "noscitur a sociis," the meaning of words may be indicated or controlled by those with which they are associated. Ball v. Stokely Foods, Inc., supra. Applied to the words here in issue, the subordinate clause becomes "no building or structures shall be moved in and set upon any of said property [on the contrary] or [on the *80 other hand] that all construction in said addition must be of new construction." So understood, the phrase "building or structures" is modified in a qualitative manner and can be reasonably considered the equivalent of the interpretation for which defendant contends, namely that buildings or structures are not to be moved in unless they are of new construction. In substituting the conjunction "and" for "but," the majority, in my judgment, glosses over other equally reasonable interpretations.
In giving his oral opinion, the attention of the trial judge seems to have been concentrated primarily on the issue of whether or not the covenant restriction was outmoded. Nothing in it suggests that he gave consideration to the effect of the clause "but that all construction in said addition must be of new construction" as it may qualify the restriction against buildings or structures being moved in or set upon the property. By failing to do so, it appears to me that without saying so, he treated the clause as surplusage.
The ambiguity is compounded by the existence of that portion of the covenant which states that "no buildings shall be erected or placed upon . . . the . . . property . . . until . . . approved in writing by the grantors." (Italics mine.) The phrase "placed upon" when used in conjunction with the word "erected" at least suggests that "erection" is not the only way to achieve a building on site, but that one may also be "placed" thereon under some circumstances. The term "placed upon" as used in the first quoted covenant, and the term "set upon" as used in the second quoted covenant, could appear to the ordinary person to be synonymous and such reader well could be confused by reading one covenant which permits him to "place" a building upon the property after obtaining approval in writing, but inconsistently prohibits him from "setting" it upon property. In so observing, I recognize that defendant does not claim to have been confused by the covenants, rather, she denies subjective awareness of them. However, faced with a legal challenge to her action, she is entitled to the defenses which the law affords even though belatedly discovered. •
*81 Although the covenant can be read narrowly and literally so as to prohibit the bringing in of any building or structure, it can also be read to prohibit only the bringing in of buildings and structures which are not of new construction. Therefore, I believe the trial court erred in construing the covenant against, rather than in favor of, the defendant. The law requires that where a covenant is ambiguous, it must be construed to uphold the public policy favoring the free and unrestricted use of land. Imposed restrictions will not be aided or extended by judicial construction and doubts will be resolved in favor of the unrestricted use of property. Burton v. Douglas County, 65 Wn.2d 619 , 399 P.2d 68 (1965); Gwinn v. Cleaver, 56 Wn.2d 612 , 354 P.2d 913 (1960); Foster v. Nehls, 15 Wn. App. 749 , 551 P.2d 768 (1976); Holmes Harbor Water Co. v. Page, 8 Wn. App. 600 , 508 P.2d 628 (1973).
I would reverse the judgment and dismiss the complaint.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9611392. Public record. Not legal advice.