State Ex Rel. Pedersen v. Drury ( 1945 )

Petitioners, George L. and Gerda M. Pedersen move for a peremptory writ of mandamus commanding the judge of the circuit court for Racine county to enter a judgment conforming to the mandate of this court in the case of Vikes v. Pedersen, decided June 15, 1945. See 247 Wis. 288,19 N.W.2d 176. The defendants in that action are the petitioners here. There was involved in that action the construction of a restrictive covenant in a deed by the grantor November 22, 1909; and a release of certain of the restrictions in an instrument executed August 16, 1926. The mandate of this court reversed the holding below to the effect that the instruments placed no restriction on the use of the premises except that no structure shall ever be placed thereon less than sixteen feet west of the east line thereof; and we remanded the case to the circuit court to enter judgment as indicated in the opinion. The lower court has entered the following judgment:

"It is ordered and adjudged:

"1. That by reason of the release dated August 16, 1926, . . . the plaintiffs are entitled to use all of:

"``Lot one (1), block two (2) of Morey and Packard's Addition to Racine, excepting the south forty-seven (47) feet, in width thereof, said land being in the city of Racine, county of Racine, state of Wisconsin'"

for mercantile purposes, but that such use of the east sixteen feet of said premises is restricted to that which is incidental to the business conducted on the remainder of said premises and actually transitory, as distinguished from storage or complete use.

"2. That plaintiffs are prohibited from erecting, constructing or maintaining any building or structure upon the said premises less than sixteen feet west from the east line thereof. The term structure restricts the plaintiffs' use for mercantile purposes of the east sixteen feet of said premises to that which is incidental to the business conducted on the remainder of said premises and actually transitory, as distinguished from storage or complete use.

"3. That plaintiffs may continue to maintain the concrete apron, underground tanks and filler pipes as now existing upon and under the east sixteen feet of the above-described premises.

"4. That plaintiffs are prohibited from maintaining gasoline pumps, advertising signs, posts, poles and accumulations of material in piles on the east sixteen feet of the above described premises.

"5. It is further ordered and adjudged that the defendants and each of them and all persons claiming under them be and they hereby are perpetually restrained from interfering with the use of the premises as herein permitted by the plaintiffs and their customers.

"6. That the plaintiffs have and recover of the defendants the sum of $100 costs together with their disbursements on the trial of this action. . . ."

Petitioners contend that the judgment of the circuit court is not in accord with the mandate of tiffs court because it does not prohibit obstructions in the nature of parked automobiles, house trailers, and other types of vehicles which interfere with the enjoyment of light, air, and vision in said area; and that it does not prohibit the use of the sixteen-foot strip for parking, greasing, washing, simonizing, repairing, and cleaning of autos. The principal holding in the original opinion of this court (p. 291) was that the "entire north portion including the sixteen-foot strip may now be used for commercial purposes." However, the provision of the restrictive covenant retained the building-line restriction and in addition imposed a limitation against the construction or erection of any structure within the restricted sixteen-foot strip. The decision then laid down certain standards by which to determine what was embraced within the prohibition. Necessarily, a complete enumeration of the prohibited items could not be made. The application of the standard so set must be made by the trial court as the situations present themselves. In determining what is prohibited by the term "structure" it was held that consideration should be given so that the original rights be not interfered with except as necessity for the business to be carried on in the other portion of the premises might require. It was held that petitioners intended to prohibit anything of a permanent nature which would interfere with a full enjoyment of light and air and vision on that strip. Certain specific items were thereupon enumerated as being within the prohibition.

It is considered that the activities of which petitioners now complain, and which were not expressly prohibited by the trial court's judgment, may be permissible, if necessity makes them incidental to the business permitted on the unrestricted portion and if they are transitory. The circumstances disclosed do not warrant us in directing the trial court to enter a judgment in this proceeding in favor of either of those having an interest to be protected in the sixteen-foot strip otherwise than as stated in the original decision. Should it become apparent that it is the purpose of the owner or of any lessee to carry on a general garage business upon this restricted strip as if a building therefor had been constructed, it would seem necessary to prevent it, but a use incidental to the business which is incidental and actually transitory in its nature is not a violation of the covenant.

Except for the paragraphs five and six, wherein the judgment of the lower court grants an injunction and allows costs to plaintiffs in the original action, which should be eliminated, the judgment conforms to the mandate of this court.

The matter of taxation of costs is not within the purview of a mandamus action. Inasmuch as the matter has been argued by the parties without objection as incidental to the principal question, in order to dispose of the matter, we hold that no costs should be taxed in the circuit court, the plaintiff in that court to pay the clerk's fees; in this court, no costs to be taxed; the petitioners to pay the clerk's fees.

By the Court. — Let the writ issue as ordered, to wit, that items five and six in the judgment be eliminated; no costs to be taxed in this court. Petitioners to pay clerk's fees.