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What Would John Wayne Do

By Lawrence B. Leff, Mark K. Payne, Suzanne M. Leff, Stan V. Jezierski

In reviewing the law regarding construction of restrictive covenants, I ran across a case I read a couple of years ago.  As I was leisurely re-reading this case I was struck by the appellate court’s interpretation of the covenants dealing with the heart of the lawsuit. No, not the validity of the developer unilaterally modifying the restrictive covenants after the sale of lots or tracts.  It was how the court concluded that sheep could be maintained on the property when under the original 1984 covenants they were specifically prohibited.

 

The appellate court, in reviewing the matter, iterated all the right language for construction of the covenants: “the plain language of a restrictive covenant must be interpreted considering its underlying purpose”; “any doubt relative to the meaning and application of the covenant must be resolved in favor of the unrestricted use of property”; “and all restrictions relative to the use or occupancy of real property must be strictly construed.”.

 

The appellate court was faced with the issue as to whether sheep could be maintained on property when the  1989 amendment only stated that  horses and bovine animals were acceptable. The 1984 covenants specifically prohibited the keeping of sheep. The invalid 1989 amendment stated – which I think is invalid because the 1984 covenants were invalidly supplanted by the 1989 amendments - that in addition to household pets, not relevant to this discussion, two horses and bovine animals may be kept.  Nothing about sheep.  The court of appeals swept aside the notion that because the sheep were not mentioned they are not prohibited by saying the language is not restrictive. The court went on to opine, it does not restrict specific animals on the lot, it just describes the types of animals that are permitted.

 

I would have thought by limiting the type of farm animals, you would be excluding all others, such as  pigs, chickens, and, yes, sheep.  Last time I looked at the dictionary,  bovines were oxen and cows, and  of the genus Bos;  and sheep are not.  Sheep are defined as members of the genus Ovis.  If we are to strictly interpret the covenants do we just say that a sheep is not a cow but so what? 

 

The appellate court then said if the intent of the covenants was to limit sheep, it would say so.  The court said the developer wanted to maintain a residential subdivision with rural characteristics. Are not horses and cows rural enough?   The court could not find any rational reason why bovine animals would be permitted and sheep would not.  But since the developer said bovine and not farm animals, don’t you think it was the intent to limit the animals to horses and cows?   It seems pretty clear to me that the intent was to keep the sheep off the range.

 

It is my guess that the judges in their younger years did not spend their time like I did on Saturday morning watching movies of John Wayne, Hopalong Cassidy, Gene Autry, Roy Rogers and all the rest of the heroes of the West bring peace to the range wars between cattle ranchers and sheepherders.  There was no place for the sheep on the open plains where they chewed the grass so low to the ground the cattle could not feed. Oh yes, there was a very good reason to keep the cattle men and sheepherders  apart as well as their animals as John Wayne well knew. 

 

 Dunne v. Shenandoah Homeowners Ass’n, Inc., 12 P.3^rd 340 (Colo.App. 2000)

 

Full post as published by Colorado Homeowners Association Law Blog on November 06, 2007 (boomark / email).