APPEAL from the Circuit Court of Knox County; the Hon. GALE A.
MATHERS, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the Circuit Court of Knox County dismissing the complaint of plaintiffs for a temporary injunction to prevent defendants from building a house, which plaintiffs alleged would be violative of a restrictive covenant.
On August 5, 1977, plaintiffs Lawrence E. and Lou Ann Engler, and certain other plaintiffs, all residents of the Westview Subdivision in Henderson Township, Knox County, filed an action against defendants Harry E. Tenhaaf, Edna R. Tenhaaf and Douglas W. Tenhaaf, seeking to enjoin defendants from building a house, which plaintiffs alleged would not have 2,000 square feet of habitable floor area, as required by a restrictive covenant. Plaintiffs also sought a temporary injunction to prevent defendants from working on the house during the pendency of the action. Defendants filed two motions to dismiss the action.
The trial court held evidentiary hearings which were heard on three separate days. Following the hearings, the circuit judge presiding, entered an order dismissing plaintiffs' complaint with prejudice.
On appeal in this case, plaintiffs contend that the term "basement" as contained in the restrictive covenant, would include a finished family room, which is partly, but less than 50 percent, below grade of the land where it is constructed.
Defendants are the owners of Lot 16 in Westview Subdivision referred to. The lot was subject to the following restrictive covenant:
"DWELLING SIZE. No dwelling shall be permitted on Lots 1 through 13 inclusive, the habital [sic] floor area of which, exclusive of basements, porches, patios, and garages, is less than 1,200 square feet, or less than 2,000 square feet for all other lots."
Defendants' lot, being a lot other than Lots 1 through 13, was subject to the requirement that a dwelling built on it should have 2,000 square feet of habitable floor area.
The house which defendants built contains 1,448 square feet of habitable floor area on the upper level and 784 square feet of habitable floor area in a family room on the lower level, for a total of 2,232 square feet of habitable floor area. Plaintiffs, however, contend that the lower-level family room, which is less than 50 percent below grade, is a "basement" and that consequently the restrictive covenant requiring a 2,000-square-foot habitable floor area, exclusive of basements, was being violated.
From the record it appears that defendant Douglas Tenhaaf applied for a permit to build a single-family residence on Lot 16 in October 1976. In the application defendant had stated he was planning to build a single-family residence with a full basement. However, defendant testified he did not build the house from the plans he had submitted with his application for a construction permit. Those plans had called for a trilevel house and the plans from which defendant actually built the house called for a ranch-style house. Dale Ralston, manager of Alexander Lumber Co., testified that he drew the plans from which defendant built his house and that the house plans called a portion of the lower level of the house a "family room."
It was also shown that Klaus Hemmer, who owned a lot across from defendants' Lot 16, asked defendant Douglas Tenhaaf about compliance with the restrictive covenant. At the time of the conversation, which occurred on defendants' lot, footings were being dug or poured for the house. Hemmer testified that he asked defendant how big the house was going to be and defendant said it was going to be big enough. Hemmer then asked how big that was and defendant assertedly replied 1800 square feet. Hemmer testified that he told defendant that wasn't big enough because the covenant required 2,000 square feet. Defendant then threw the blueprints at Hemmer, according to Hemmer, and told him to check for himself. Defendant, who was called for a section 60 examination, stated that he didn't care about Hemmer or the restrictive covenants.
Later, Tenhaaf, under direct examination, stated that the conversation between Hemmer and Tenhaaf took place at 5:30 p.m. when defendant was pressed for time and was in the process of working on the footings of the house. Defendant testified that Hemmer had asked if the house had 2,000 square feet and defendant replied that it did, offering to show Hemmer the plans. Hemmer then looked briefly at the plans and said he still didn't believe the house would have 2,000 square feet. Defendant stated the conversation lasted for only a few minutes.
Another witness, Dan Stevens, owner of a lot across from defendants' lot, testified that he asked Tenhaaf if he was aware of the covenant requiring a certain amount of square footage and defendant's reply was "* * * what do you want me to do about it now?" Stevens replied that he wanted defendant to bring the house up to specifications. Defendant testified that this conversation took place in the summer of 1977, at which time he was in the process of putting a roof on the house.
It was also shown of record that the home of a Paul D. Keser, on Lot 15, immediately adjacent to defendant's home, has only 1,653.7 square feet of habitable living area. By the time appellee's brief was filed in the instant ...