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Jubb v. Letterle

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1994 Term
No. 21615    
VERNON JUBB, DELORES JUBB,
ALDEN PLUMMER, VIRGINIA PLUMMER,
LAWRENCE HUGHES AND PAULINE LOGSDON,
Plaintiffs Below, Appellants

v.
ROBERT LETTERLE AND MARY LOU LETTERLE, Defendants Below, Appellees
Appeal from the Circuit Court of Mineral County Honorable C. Reeves Taylor, Judge Civil Action No. 87-C-137
AFFIRMED ___________________________________________________ Submitted: March 1, 1994 Filed: June 16, 1994
David H. Webb Staggers, Staggers & Webb Keyser, West Virginia Attorney for the Appellants
Jack C. Barr Barr & James Keyser, West Virginia Attorney for the Appellees
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
        "'"The fundamental rule in construing covenants and restrictive agreements is that the intention of the parties governs. That intention is gathered from the entire instrument by which the restriction is created, the surrounding circumstances and the objects which the covenant is designed to accomplish." Wallace v. St. Clair, 147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962).' Syl. Pt. 2, Allemong v. Frendzel, [178] W. Va. [601], 363 S.E.2d 487 (1987)." Syl. pt. 3, Jubb v. Letterle, 185 W. Va. 239, 406 S.E.2d 465 (1991).
Per Curiam:
        In this appeal from orders of the Circuit Court of Mineral County, West Virginia, the appellants contend that the circuit court erred in determining that the appellees are not in contempt of this Court's ruling in Jubb v. Letterle, 185
W. Va. 239, 406 S.E.2d 465 (1991) (hereinafter "Jubb I"). The circuit court determined that certain restrictive covenants were binding on an area subdivided or indicated for future development of a subdivision known as Mountainaire Village. However, it also held that a small area of the land is not bound by these restrictions because it is almost completely blocked off from the rest of the subdivision by a parcel of land which is not bound by these restrictions. This Court has before it the petition for appeal and the briefs and arguments of counsel. For the reasons stated below, the decision of the circuit court is affirmed.
I
        The appellees, Robert E. and Mary Lou Letterle, designated approximately forty-two acres of land for the development of a subdivision to be known as Mountainaire Village, in Mineral County, West Virginia. A plat designed by the engineering firm of Stultz & Associates, Inc., on February 17, 1982, depicted the roads, water and sewer lines, lots and layout to be encompassed by the subdivision. The appellees placed restrictive covenants on file with the Mineral County Clerk's office,See footnote 1 indicating that these covenants would be applicable to Mountainaire Village and referencing the February 17, 1982 plat as the scope and character of Mountainaire Village. The stated purpose of these covenants was to keep the subdivision "desirable, uniform and suitable in architectural design[.]"
        When appellants Lawrence Hughes and Pauline Logsdon and appellants Alden and Virginia Plummer purchased lots from the appellees in May, 1983, and December, 1984, respectively, their deeds referred specifically to the restrictive covenants on file with the Mineral County Clerk's office. Conversely, in January, 1984, when appellants, Vernon and Delores Jubb, purchased their lot from the appellees, their deed made no reference to these restrictions.
        By June, 1987, the appellees were advertising the remaining lots of the subdivision for sale without reference to the restrictive covenants. Consequently, the appellants brought an action in the Circuit Court of Mineral County to enforce the application of the restrictive covenants to the entire subdivision. The circuit court held that the restrictive covenants did not apply to the entirety because there was no common plan or general scheme to restrict all the lots within the subdivision. However, in Jubb I, we reversed, holding that
        it was the intention of the appellees, upon placing the restrictive covenants on file, to create a general plan or common scheme of development restricting the usage of all lots within the subdivision for the mutual benefit of all owners. [And further] that each individual owner purchasing property within the area originally designated Mountainaire Village, as depicted in the February 14, 1982,See footnote 2 Stultz drawing, acquired a right to enforce the restrictive covenants against any other owner or owners."
Id. at 469. (footnote added). Subsequent to this Court's decision in Jubb I, the appellees conveyed a parcel of six

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