Walters v. Colford , 297 Neb. 302 ( 2017 )


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    297 Nebraska R eports
    WALTERS v. COLFORD
    Cite as 
    297 Neb. 302
    Gary J. Walters et al., appellants, v.
    Steven W. Colford et al., appellees.
    ___ N.W.2d ___
    Filed July 28, 2017.    No. S-16-641.
    1.	 Summary Judgment: Appeal and Error. An appellate court will
    affirm a lower court’s grant of summary judgment if the pleadings and
    admitted evidence show that there is no genuine issue as to any material
    facts or as to the ultimate inferences that may be drawn from those facts
    and that the moving party is entitled to judgment as a matter of law.
    2.	 ____: ____. In reviewing a summary judgment, the court views the
    evidence in the light most favorable to the party against whom the
    judgment was granted and gives such party the benefit of all reasonable
    inferences deducible from the evidence.
    3.	 Trial: Juries: Evidence. Where the facts are undisputed or are such that
    reasonable minds can draw but one conclusion therefrom, it is the duty
    of the trial court to decide the question as a matter of law rather than
    submit it to the jury for determination.
    4.	 Summary Judgment: Evidence: Proof. A movant for summary judg-
    ment makes a prima facie case by producing enough evidence to dem-
    onstrate that the movant is entitled to a judgment if the evidence were
    uncontroverted at trial. At that point, the burden of producing evidence
    shifts to the party opposing the motion, who must present evidence
    showing the existence of a material fact that prevents summary judg-
    ment as a matter of law.
    5.	 Restrictive Covenants. When restrictive covenants are created for the
    mutual benefit of all of the properties within a development, they may
    be enforced by each of the property owners against the other.
    6.	 ____. The doctrine of implied reciprocal negative servitudes allows—
    under very limited circumstances—a servitude to be created by implica-
    tion, even where no express servitude applies to the property at issue.
    7.	 ____. The requirements for the application of the doctrine of implied
    reciprocal negative servitudes are as follows: (1) There is a common
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    grantor of property who has a general plan or scheme of development
    for the property; (2) the common grantor conveys a significant number
    of parcels or lots in the development subject to servitudes (restrictive
    covenants) designed to mutually benefit the properties in the develop-
    ment and advance the plan of development; (3) it can be reasonably
    inferred, based on the common grantor’s conduct, representations, and
    implied representations, that the grantor intended the property against
    which the servitude is implied to be subject to the same servitudes
    imposed on all of the properties within the plan of development; (4)
    the property owner against whom the restriction is enforced has actual
    or constructive notice of the implied servitude; (5) the party seeking to
    enforce the restriction possesses an interest in property in the develop-
    ment that is subject to the servitude and has reasonably relied upon the
    representations or implied representations of the common grantor that
    other properties within the general scheme of development will be sub-
    ject to the servitude; and (6) injustice can be avoided only by implying
    the servitude.
    8.	 ____. The law disfavors restrictions on the use of land. Logically, if
    express restrictive covenants are disfavored under the law, implied
    restrictive covenants are to be viewed with even less favor.
    9.	 ____. Because implied restrictive covenants mandate relaxation of the
    writing requirement, courts are generally reluctant and cautious to con-
    clude implied restrictive covenants exist.
    10.	 ____. The doctrine of implied reciprocal negative servitudes should be
    applied with extreme caution because in effect it lodges discretionary
    power in a court to deprive a person of his or her property by imposing
    a servitude through implication.
    11.	 Property: Boundaries. Whether a general plan or scheme of devel-
    opment exists and the scope and boundary of that plan are questions
    of fact.
    12.	 Property: Intent: Proof. A grantor’s intent to create a plan of develop-
    ment may be proved from the conduct of parties or from the language
    used in deeds, plats, maps, or general building development plans and
    by looking to matters extrinsic to related written documents, including
    conduct, conversation, and correspondence.
    13.	 Property: Boundaries: Presumptions. Where property is subdivided
    or platted pursuant to a plan of development, a presumption arises
    that the plan of development includes only those properties in the plat
    or subdivision.
    14.	 Restrictive Covenants. The property included within a plan of develop-
    ment, for purposes of the doctrine of implied reciprocal negative servi-
    tudes, does not necessarily include all of the developer’s land, but can
    be limited to certain well-defined similarly situated lots.
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    15.	 Property: Boundaries. Where a development is subdivided or plat-
    ted in separate phases, each phase constitutes its own separate plan
    of development.
    16.	 Restrictive Covenants. The doctrine of implied reciprocal negative
    servitudes has no application where a developer follows the practice
    of creating restrictions on a development through a declaration of
    restrictions.
    17.	 ____. A buyer of property has no reasonable expectation that neighbor-
    ing property will be restricted as part of a plan of development pursuant
    to the doctrine of implied reciprocal negative servitudes where the entire
    development has been restricted through a declaration of restrictions that
    does not include that neighboring property.
    18.	 ____. The purpose of the doctrine of implied reciprocal negative servi-
    tudes is to protect the reasonable expectations of purchasers of property
    who reasonably rely on the representations or implied representations
    of a developer that the other properties within a development will
    be restricted.
    19.	 ____. Limiting the scope of the implied reciprocal servitudes doc-
    trine to situations where restrictive covenants are placed in individual
    deeds serves the interest of promoting reliance on our property record-
    ing system.
    Appeal from the District Court for Butler County: M ary C.
    Gilbride, Judge. Affirmed.
    Jeffrey A. Silver for appellants.
    Todd B. Vetter and Luke P. Henderson, of Fitzgerald, Vetter,
    Temple & Bartell, for appellees Steven W. Colford and Sara
    J. Colford.
    Robert J. Bierbower for appellee Daniel F. Adamy.
    Heavican, C.J., Wright, Miller-Lerman, Stacy, K elch, and
    Funke, JJ.
    Wright, J.
    I. NATURE OF CASE
    At issue in this case is whether the property owned by
    Steven W. Colford and Sara J. Colford is subject to the
    neighboring subdivision’s restrictive covenants by virtue of
    the doctrine of implied reciprocal negative servitudes. The
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    district court concluded that it was not and granted summary
    judgment to the appellees, the Colfords and Daniel F. Adamy.
    We affirm.
    II. BACKGROUND
    1. Procedural Background
    The appellants, Gary J. Walters and Denise R. Walters, as
    cotrustees of the Gary J. Walters and Denise R. Walters Trust;
    Aaron Schmid; Jacquelyne J. Romshek; and Cory Micek (col-
    lectively the plaintiffs), brought suit against the Colfords and
    Adamy. The suit alleges three claims: mandatory injunction
    for violation of the neighboring subdivision’s restrictive cov­
    enants, nuisance (derived from the alleged restrictive cov­enants
    violation), conspiracy to violate the restrictive covenants, and
    invasion of privacy (later voluntarily dismissed without preju-
    dice by the plaintiffs).
    The Colfords moved for summary judgment. The district
    court granted the motion with respect to the mandatory injunc-
    tion claim and the nuisance claim, but not with respect to the
    invasion of privacy claim. The court’s order did not address
    the conspiracy claim. The court set a pretrial hearing for the
    remaining issues in the case. The plaintiffs appealed from the
    court’s order. The appeal was dismissed for lack of a final,
    appealable order. The plaintiffs then voluntarily dismissed their
    invasion of privacy claim without prejudice. The Colfords
    again moved for summary judgment, and Adamy joined this
    motion. The district court granted the motion with respect to
    the only remaining issue, the conspiracy claim, concluding that
    because the covenants did not apply to the Colfords’ property,
    there could be no civil conspiracy to violate the covenants. The
    plaintiffs appealed, and we subsequently moved this case to
    our docket.
    2. Factual Background
    The plaintiffs are neighbors to the Colfords. The plaintiffs
    live in a platted subdivision known as the Adamy subdivision.
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    The Adamy subdivision was platted and dedicated in 1976,
    and the founding documents were filed with the Butler County
    register of deeds. The plat and dedication included restrictive
    covenants, which, among other things, limited the structures
    on the lots to one single-family, two-story house and one
    two- or three-car garage. The subdivision contains 14 lots cre-
    ated from a piece of property consisting of around 16.5 acres.
    The Adamy family also owned much of the property adja-
    cent to the subdivision, including the entire quarter-section
    (approximately 160 acres) of land in which the subdivision
    was located.
    Adamy later sold some of the property adjacent to the
    Adamy subdivision without restrictive covenants, including to
    the Walters. Adamy hired two real estate agents to sell some
    of the lots in the Adamy subdivision that remained unsold as
    well as some adjoining property. Adamy did not remember
    when he hired the two agents.
    The record contains promotional brochures produced by the
    two real estate agents advertising the sale of properties owned
    by Adamy. The brochures listed the property for sale under
    the names “Adamy Division” and “Valley View Subdivision.”
    The brochures contained maps of the properties for sale, dis-
    playing lots within the Adamy subdivision alongside adjacent
    property owned by Adamy. That adjacent property included
    portions or all of the property later sold to the Colfords (the
    Colford Property), a 5-acre parcel immediately to the west of
    the Adamy subdivision. One of the brochures listed the restric-
    tive covenants applicable to the Valley View subdivision and
    said, “These covenants may change. Contact listing agents for
    more information” (emphasis omitted). Adamy testified that he
    did not approve of any of the advertising materials produced
    by his real estate agents.
    The Colfords purchased 5 acres of property from Adamy
    in 2013 for $25,000. When Adamy sold the property to the
    Colfords, the property was not subject to any restrictive cov-
    enants. Later, Adamy placed restrictions on the property that
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    he and the Colfords negotiated. These new restrictions on
    the Colford Property were different from those in place on
    the Adamy subdivision. He testified that he never intended
    to make the Colford Property subject to the same restric-
    tive covenants that were in place on the Adamy subdivision.
    The Colfords were aware that there were restrictive cov-
    enants in place on the Adamy subdivision, but did not know
    their details.
    After purchasing the property, the Colfords constructed a
    large metal building, approximately 30 by 50 feet, which the
    plaintiffs alleged was in violation of the Adamy subdivision
    covenants. The Colfords used the building to store building
    material to build a house on the property.
    III. ASSIGNMENT OF ERROR
    The Walters claim that the district court erred as a mat-
    ter of law in granting each of the two motions for summary
    judgment.
    IV. STANDARD OF REVIEW
    [1,2] An appellate court will affirm a lower court’s grant
    of summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts
    or as to the ultimate inferences that may be drawn from
    those facts and that the moving party is entitled to judgment
    as a matter of law.1 In reviewing a summary judgment, the
    court views the evidence in the light most favorable to the
    party against whom the judgment was granted and gives such
    party the benefit of all reasonable inferences deducible from
    the evidence.2
    [3,4] Where the facts are undisputed or are such that rea-
    sonable minds can draw but one conclusion therefrom, it is
    1
    Pierce v. Landmark Management Group, Inc., 
    293 Neb. 890
    , 
    880 N.W.2d 885
    (2016).
    2
    
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    the duty of the trial court to decide the question as a matter
    of law rather than submit it to the jury for determination.3 A
    movant for summary judgment makes a prima facie case by
    producing enough evidence to demonstrate that the movant is
    entitled to a judgment if the evidence were uncontroverted at
    trial.4 At that point, the burden of producing evidence shifts
    to the party opposing the motion, who must present evidence
    showing the existence of a material fact that prevents sum-
    mary judgment as a matter of law.5
    V. ANALYSIS
    1. The Plaintiffs’ Claim for Injunctive R elief:
    A damy Subdivision R estrictive Covenants
    Do Not Expressly A pply to the
    Colford Property
    There is no evidence that the Colford Property is expressly
    subject to the Adamy subdivision restrictive covenants. The
    Colford Property is not a part of the Adamy subdivision.
    The Adamy subdivision restrictive covenants expressly apply
    only to the lots within the subdivision. The plaintiffs may
    prevail only if they can establish that the Colford Property
    is restricted through the doctrine of implied reciprocal nega-
    tive servitudes.
    2. The Plaintiffs’ Claim for Injunctive R elief:
    A pplication of Doctrine of Implied
    R eciprocal Negative Servitudes
    to the Colford P roperty
    The plaintiffs argue that the Colford Property is sub-
    ject to the Adamy subdivision restrictions through the doc-
    trine of implied reciprocal negative servitudes. The district
    court concluded that there was no material issue of fact as
    3
    Id.
    4
    Id.
    5
    
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    to the application of the doctrine because “[a]lthough all
    of the land at issue was conveyed by a common grantor,
    there is no showing that the grantor had a common plan of
    development for the Colford land or had any intent to restrict
    the use of it.”
    (a) Overview of Doctrine
    [5] Restrictive covenants on property use are often utilized
    in developments to maintain the character of the neighbor-
    hood in accord with the development plan and to protect prop-
    erty values.6 When restrictive covenants are created for the
    mutual benefit of all of the properties within a development,
    they may be enforced by each of the property owners against
    the other.7 While at common law, restrictive covenants on land
    use were categorized as either “real covenants” or “equitable
    servitudes” depending on whether they were enforced in law or
    equity, the distinction between these two has blurred over time.8
    6
    See, generally, 1 Restatement (Third) of Property: Servitudes § 2.14,
    comment a. (2000); Citizens for Cov. Comp. v. Anderson, 
    12 Cal. 4th 345
    ,
    352, 
    906 P.2d 1314
    , 1318, 
    47 Cal. Rptr. 2d 898
    , 902 (1995) (“[m]odern
    subdivisions are often built according to a general plan containing
    restrictions that each owner must abide by for the benefit of all”).
    7
    See, Plumb v. Ruffin, 
    213 Neb. 335
    , 
    328 N.W.2d 792
    (1983); Reed
    v. Williamson, 
    164 Neb. 99
    , 
    82 N.W.2d 18
    (1957). See, generally, 1
    Restatement, supra note 6.
    8
    9 Richard R. Powell & Michael Allan Wolf, Powell on Real Property
    § 60.01[5] at 60-11 (2000). See, generally, 
    id., § 60.01[4]
    and [5]; 7
    Thompson on Real Property §§ 61.02(b) and (c) and 61.05 (David A.
    Thomas 2d ed. 2006); 1 Restatement, supra note 6, §§ 1.4 and 2.1,
    comment a.; Citizens for Cov. Comp. v. Anderson, supra note 6, 
    12 Cal. 4th
    at 
    348, 906 P.2d at 1316
    , 47 Cal. Rptr. 2d at 900 (referring to law of
    real covenants and equitable servitudes as “‘the most complex and archaic
    body of American property law remaining in the twentieth century’” and
    as “‘an unspeakable quagmire’”).
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    The modern trend, as represented by the Restatement (Third)
    of Property: Servitudes,9 is to refer to both real covenants and
    equitable servitudes simply as servitudes.
    [6,7] The doctrine of implied reciprocal negative servi-
    tudes10 allows—under very limited circumstances—a servi-
    tude to be created by implication, even where no express
    servitude applies to the property at issue. The require-
    ments for the ­  application of this doctrine are as follows:
    (1) There is a common grantor of property who has a gen-
    eral plan or scheme of development for the property;11
    (2) the common grantor conveys a significant number of
    parcels or lots in the development subject to servitudes
    (restrictive covenants) designed to mutually benefit the
    properties in the development and advance the plan of
    9
    See, 1 Restatement, supra note 6, §§ 1.3 and 1.4; 9 Powell & Wolf, supra
    note 8, § 60.01[6]. See, also, generally, Lawrence Berger, Integration of
    the Law of Easements, Real Covenants and Equitable Servitudes, 43 Wash.
    & Lee L. Rev. 337 (1986); Uriel Reichman, Toward a Unified Concept of
    Servitudes, 55 S. Cal. L. Rev. 1177 (1982); Ralph A. Newman & Frank R.
    Losey, Covenants Running with the Land, and Equitable Servitudes; Two
    Concepts, or One?, 21 Hastings L.J. 1319 (1970).
    10
    See, generally, 1 Restatement, supra note 6, § 2.14; 20 Am. Jur. 2d
    Covenants, Etc. § 156 (2015); 21 C.J.S. Covenants § 4 (2016); Krueger
    v. Oberto, 
    309 Ill. App. 3d 358
    , 
    724 N.E.2d 21
    , 
    243 Ill. Dec. 712
    (1999);
    Schovee v. Mikolasko, 
    356 Md. 93
    , 
    737 A.2d 578
    (1999); Evans v. Pollock,
    
    796 S.W.2d 465
    (Tex. 1990); Sharts v. Walters, 
    107 N.M. 414
    , 
    759 P.2d 201
    (N.M. App. 1988); Mid-State Equipment Co. v. Bell, 
    217 Va. 133
    ,
    
    225 S.E.2d 877
    (1976); Williams v. Waldrop, 
    216 Ga. 623
    , 
    118 S.E.2d 465
    (1961); Nashua Hospital v. Gage, 
    85 N.H. 335
    , 
    159 A. 137
    (1932);
    Sanborn v. McLean, 
    233 Mich. 227
    , 
    206 N.W. 496
    (1925).
    11
    Skyline Woods Homeowners Assn. v. Broekemeier, 
    276 Neb. 792
    , 
    758 N.W.2d 376
    (2008); Egan v. Catholic Bishop, 
    219 Neb. 365
    , 
    363 N.W.2d 380
    (1985).
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    development;12 (3) it can be reasonably inferred, based on
    the common grantor’s conduct, representations, and implied
    representations, that the grantor intended the property against
    which the servitude is implied to be subject to the same
    servitudes imposed on all of the properties within the plan
    of development;13 (4) the property owner against whom the
    restriction is enforced has actual or constructive notice of
    the implied servitude;14 (5) the party seeking to enforce the
    restriction possesses an interest in property in the devel-
    opment that is subject to the servitude and has reason-
    ably relied upon the representations or implied representa-
    tions of the common grantor that other properties within
    the general scheme of development will be subject to the
    12
    See Egan v. Catholic Bishop, supra note 
    11, 219 Neb. at 370
    , 363
    N.W.2d at 384 (stating that doctrine applies where common grantor “by
    numerous conveyances incorporates in the deeds substantially uniform
    restrictions, conditions, and covenants against the use of the property”).
    See, also, Patch v. Springfield School Dist., 
    187 Vt. 21
    , 33, 
    989 A.2d 500
    , 508 (2009) (requiring for application of doctrine that “‘vast majority
    of subdivided lots contain restrictive covenants which reflect the general
    scheme’”).
    13
    See, Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11;
    Egan v. Catholic Bishop, supra note 11; Nashua Hospital v. Gage, supra
    note 
    10, 85 N.H. at 339
    , 159 A. at 139 (requiring that “‘restrictions were
    intended by the common vendor to be and were for the benefit of all the
    lots intended to be sold’”).
    14
    See, Skyline Woods Homeowners Assn. v. Broekemeier, supra note 
    11, 276 Neb. at 811
    , 758 N.W.2d at 390-91 (“‘[t]he recording acts have not
    abolished the equity rule as to actual and constructive notice.’ Under this
    rule, we consider whether there are circumstances which, in the exercise of
    common reason and prudence, ought to put a man upon particular inquiry.
    If so, then the purchaser will be charged with notice of every fact which an
    inquiry, if made, would have given him or her”); Egan v. Catholic Bishop,
    supra note 11.
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    servitude;15 and (6) injustice can be avoided only by imply-
    ing the servitude.16
    [8-10] While the doctrine of implied reciprocal negative
    servitudes has a long pedigree and is well established,17 courts
    tend to use it only with great trepidation. We have said that
    the law disfavors restrictions on the use of land.18 As one court
    reasoned, “Logically, if express restrictive covenants are dis-
    favored under the law, implied restrictive covenants are to be
    viewed with even less favor.”19 We have also said that because
    implied restrictive covenants mandate relaxation of the writ-
    ing requirement, courts are generally reluctant and cautious
    to conclude implied restrictive covenants exist.20 As another
    court said, “the doctrine [of implied reciprocal negative ser-
    vitudes] should be applied with extreme caution because in
    15
    See, Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11;
    Egan v. Catholic Bishop, supra note 11. See, also, Ski Masters of Texas,
    LLC v. Heinemeyer, 
    269 S.W.3d 662
    , 669 (Tex. App. 2008) (“[q]uestions
    about standing are implicated whenever a property owner seeks to enforce
    such a restrictive covenant. Standing essentially depends on two things:
    (1) the existence of a general plan or scheme of development (2) that was
    part of the inducement for purchasers to obtain land within the restricted
    area”) (citing Hooper v. Lottman, 
    171 S.W. 270
    (Tex. App. 1914)).
    16
    1 Restatement, supra note 6, § 2.14(2)(b). See, also, Sullivan v. O’Connor,
    81 Mass. App. 200, 
    961 N.E.2d 143
    (2012). Cf. Mountain High
    Homeowners Assn. v. J.L. Ward, 
    228 Or. App. 424
    , 438, 
    209 P.3d 347
    , 355
    (2009) (limiting creation of implied equitable servitudes by estoppel to
    where “establishment of a servitude is necessary to avoid injustice”).
    17
    E.g., Evans v. Pollock, supra note 
    10, 796 S.W.2d at 466
    (“implied
    reciprocal negative easement doctrine has long been recognized in many
    jurisdictions”).
    18
    See, Latenser v. Intercessors of the Lamb, Inc., 
    250 Neb. 789
    , 
    553 N.W.2d 458
    (1996); Egan v. Catholic Bishop, supra note 11.
    19
    Collins v. Rodgers, 
    938 So. 2d 379
    , 385 (Ala. 2006).
    20
    Skyline Woods Homeowners Assn. v. Broekemeier, supra note 11.
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    effect it lodges discretionary power in a court to deprive a
    [person] of his [or her] property by imposing a servitude
    through implication.”21 Some courts, in agreement with the
    Restatement drafters, require clear and convincing evidence
    to establish that a property is subject to the restrictions of an
    implied reciprocal negative servitude.22
    [11,12] Whether a general plan or scheme of development
    exists and the scope and boundary of that plan are questions of
    fact.23 The Restatement commentary explains:
    Representations by the developer normally provide
    the basis for finding that land was conveyed pursuant to
    a general plan of development. The representations may
    take the form of direct expressions that the project is a
    planned development, a restricted community, a qual-
    ity residential subdivision, or the like. Representations
    may be found in advertisements, brochures, or statements
    21
    Galbreath v. Miller, 
    426 S.W.2d 126
    , 128 (Ky. 1968). See, also, Land
    Developers, Inc. v. Maxwell, 
    537 S.W.2d 904
    , 913 (Tenn. 1976) (stating
    that doctrine should be applied with “‘“extreme caution”’”); Saccomanno
    v. Farb, 
    492 S.W.2d 709
    , 713 (Tex. App. 1973) (stating that doctrine
    should be applied with “extreme caution”).
    22
    1 Restatement, supra note 6, § 2.14, comment f. See, also, The Greylag
    4 Maint. Corp. v. Lynch-James, No. CIV.A. 205-N, 
    2004 WL 2694905
    at
    *5 (Del. Ch. Oct. 6, 2004) (requiring “the party asserting the common
    plan doctrine [to] show, by clear and convincing evidence, that a common
    plan in fact existed”) (citing Leon N. Weiner & Associates v. Krapf, 
    623 A.2d 1085
    (Del. 1993)); Joslyn v. Woods, No. 2001-CA-000320-MR,
    
    2003 WL 1246955
    (Ky. App. Feb. 14, 2003) (requiring proof by clear and
    convincing evidence for doctrine of implied reciprocal easements) (citing
    Bellemeade Company v. Priddle, 
    503 S.W.2d 734
    (Ky. 1973)); McKenrick
    v. Savings Bank, 
    174 Md. 118
    , 128, 
    197 A. 580
    , 585 (1938) (requiring
    “clear and satisfactory proof” to establish existence of general scheme of
    development and that land in question was intended by common grantor to
    be subject to restrictions as part of scheme).
    23
    1 Restatement, supra note 6, § 2.14, comment f.; Ski Masters of Texas,
    LLC v. Heinemeyer, supra note 15.
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    made by sales personnel. Indirect representations may
    be found in maps, or pictures displayed to prospective
    purchasers. Representations may also be found in the
    language or nature of the servitudes imposed on the
    lots conveyed.24
    We said in Skyline Woods Homeowners Assn. v.
    Broekemeier25 that a grantor’s intent to create a plan of devel-
    opment may be proved “from the conduct of parties or from
    the language used in deeds, plats, maps, or general building
    development plans” and by looking “‘to matters extrinsic to
    related written documents, including conduct, conversation,
    and correspondence.’”
    [13] Determining which properties are included within a
    plan of development is relatively easy where land is platted
    or subdivided, because “[i]n the absence of other evidence,
    the inference is normally justified that all of the land within
    a platted subdivision is subject to the general plan, and that
    land outside the subdivision is not included.”26 Thus, where
    property is subdivided or platted pursuant to a plan of devel-
    opment, a presumption arises that the plan of development
    includes only those properties in the plat or subdivision.27
    [14,15] The property included within a plan of development,
    for purposes of the doctrine, does not necessarily include all
    24
    1 Restatement, supra note 6, § 2.14, comment f. at 185. See, also,
    generally, Country Community v. HMW Special Utility, 
    438 S.W.3d 661
          (Tex. App. 2014); Swanson v. Green, 
    572 So. 2d 1246
    (Ala. 1990).
    25
    Skyline Woods Homeowners Assn. v. Broekemeier, supra note 
    11, 276 Neb. at 805
    , 758 N.W.2d at 387.
    26
    1 Restatement, supra note 6, § 2.14, comment g. at 187. See, also,
    generally, Roper v. Camuso, 
    376 Md. 240
    , 261, 
    829 A.2d 589
    , 602 (2003)
    (“cases considering implied restrictions on land retained by a common
    grantor have turned on two key inquiries: whether (1) there was a general
    plan of development, and (2) if so, the retained land was intended to be a
    part of the development”).
    27
    See 1 Restatement, supra note 6, § 2.14, comment g.
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    of the developer’s land, but can be limited to “certain well-
    defined similarly situated lots.”28 And where a development
    is subdivided or platted in separate phases, each phase consti-
    tutes its own separate plan of development.29
    In addition to the aforementioned limitations on the scope
    of this doctrine, there is another limitation on its application
    that is key to the resolution of the case at bar.
    (b) Gap-Filling Function
    of Doctrine
    The doctrine of implied reciprocal negative servitudes func-
    tions as a gap-filler. It is an equitable doctrine created to pro-
    tect property owners. Where a property owner purchases a lot
    from a developer that is subject to a restrictive covenant in
    the individual lot deed, but where the developer subsequently
    conveys a lot within the development without a restriction in
    the deed, the doctrine steps in to fill the gap. It fills the gap in
    order to protect the other property owners’ reasonable expecta-
    tions that all of the lots within the plan of development will be
    similarly restricted.
    The doctrine arose in the historical context of a time in
    which developers typically restricted properties within a plan
    28
    Evans v. Pollock, supra note 
    10, 796 S.W.2d at 471
    . See, also, Byrd v.
    Mahrou, No. 03-14-00441-CV, 
    2016 WL 3974702
    (Tex. App. July 22,
    2016).
    29
    1 Restatement, supra note 6, § 2.14, comment g. at 187 (“[w]hen a tract
    is developed in phases, with separate units or subdivisions, the imposition
    of servitudes in one phase should not give rise to the implication of
    reciprocal servitudes burdening the remaining units or subdivisions”). See,
    Evans v. Pollock, supra note 10; Duvall v. Ford Leasing, 
    220 Va. 36
    , 42,
    
    255 S.E.2d 470
    , 473 (1979) (holding, in situation where development “was
    developed in stages, the various sections having been created from time to
    time over a period of many years by the recordation of a number of deeds
    of dedication and plats,” that “each of these recordings created a separate
    and distinct subdivision, with its own set of restrictions benefiting and
    burdening only the land in that particular subdivision”).
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    of development by placing restrictive covenants in each indi-
    vidual property deed. As one court explained:
    [T]he implied negative reciprocal easement or servitude
    doctrine arose before the advent of comprehensive zon-
    ing in order to provide a measure of protection for those
    who bought lots in what they reasonably expected was
    a general development in which all of the lots would
    be equally burdened and benefitted. In those early days,
    it was uncommon for the developer to evidence the
    development or impose uniform restrictions through a
    recorded Declaration that would later be incorporated
    in individual deeds. They often filed subdivision plats
    of one kind or another but did not take the extra step
    of using one instrument to impose the restrictions. The
    common, almost universal, practice, instead, was for the
    developer to place the restrictions in the deeds to indi-
    vidual lots and, sometimes, to represent to the purchasers
    of those lots that the same restrictions would be placed
    in subsequent deeds to the other lots. Litigation arose
    most frequently when the developer then neglected to
    include the restrictions in one or more of the subsequent
    deeds and those buyers proceeded or proposed to use
    their property in a manner that would not be allowed by
    the restrictions.30
    Because developers historically restricted properties as part of
    their plan of development on a deed-by-deed basis, the doctrine
    was created to fill the gap where a property was conveyed
    without restrictions in the deed.
    But a common practice today is for developers to place
    restrictions on an entire development all at once through
    30
    Schovee v. Mikolasko, supra note 
    10, 356 Md. at 107-08
    , 737 A.2d at 586
    (citing Restatement (Third) of Property: Servitudes § 2.14, comment b.
    (Tentative Draft No. 1, 1989)).
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    executing and recording a declaration of restrictions.31 Where
    this occurs, there is no need for the doctrine’s gap-filling
    function. The drafters of the Restatement took the position
    that the doctrine has no application where a development’s
    restrictions are created through a declaration of restrictions
    rather than through restrictive covenants placed in individual
    lot deeds:
    The idea underlying the [implied-reciprocal-servitude]
    doctrine is that when a purchaser buys land subject
    to restrictions imposed to carry out a general plan of
    development, the purchaser is entitled to assume that
    all the land in the development is, or will be, similarly
    restricted to carry out the general plan. By selling land
    with restrictions designed to put into effect a general plan
    of development, the developer impliedly represents to the
    purchasers that the rest of the land included in the plan
    is, or will be, similarly restricted. That representation is
    enforced, on the grounds of estoppel, by imposing an
    implied reciprocal servitude on the developer’s remain-
    ing land included in the plan. Because the implied-
    reciprocal-servitude doctrine undercuts the Statute of
    Frauds and creates uncertainty in land titles, it should
    be applied only when the existence of a general plan is
    clear and establishment of the servitude is necessary to
    avoid injustice.
    The implied-reciprocal-servitude doctrine comes into
    play only when the developer does not follow the prac-
    tice of recording a declaration of servitudes applicable
    to the entire subdivision or other general-plan area. The
    31
    See Black’s Law Dictionary 495 (10th ed. 2014) (defining “declaration of
    restrictions” as “statement of all the covenants, conditions, and restrictions
    affecting a parcel of land, usu[ally] imposed and recorded by a developer
    of a subdivision. The restrictions usu[ally] promote a general plan of
    development by requiring all lot owners to comply with the specified
    standards, esp[ecially] for buildings. The restrictions run with the land”).
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    doctrine protects the interests of purchasers who relied
    on continued effectiveness of the general plan when
    the developer decides to deviate from the general plan
    of development before all lots have been sold. If the
    purchasers have reasonably relied on the implied repre-
    sentations that all lots will be sold subject to the general-
    plan restrictions, and injustice can only be avoided by
    establishment of the implied servitude, the purchasers
    are entitled to the protection of an implied reciprocal
    servitude burdening the lots remaining in the devel-
    oper’s hands.32
    [16] We agree with the Restatement that the doctrine of
    implied reciprocal negative servitudes has no application where
    a developer follows the practice of creating restrictions on a
    development through a declaration of restrictions. We agree
    with this approach because it furthers the interests of protect-
    ing the reasonable expectations of property purchasers and
    promoting reliance on our property recording system.
    [17] A buyer of property has no reasonable expectation that
    neighboring property will be restricted as part of a plan of
    development where the entire development has been restricted
    through a declaration of restrictions that does not include that
    neighboring property. Such a buyer knows, or should know,
    that the neighboring property is not a part of the development
    and not necessarily subject to the same restrictions as the
    buyer’s property.
    32
    1 Restatement, supra note 6, § 2.14, comment i. at 191 (emphasis
    supplied). See, also, Save Sea Lawn Acres Ass’n v. Mercer, 140 Wash.
    App. 411, 422, 
    166 P.3d 770
    , 776 (2007) (stating that “implied-reciprocal-
    servitude doctrine applies only when the developer does not follow the
    practice of recording a declaration applicable to the entire subdivision or
    general-plan area”). But see, Roper v. Camuso, supra note 26; Schovee v.
    Mikolasko, supra note 10 (declining to adopt Restatement’s categorical
    rule that doctrine does not apply where developer uses declaration, but,
    instead, creating strong presumption that doctrine does not apply beyond
    scope of declaration).
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    [18] The purpose of the doctrine is to protect the reason-
    able expectations of purchasers of property who reasonably
    rely on the representations or implied representations of a
    developer that the other properties within a development will
    be restricted. But the need for implied restrictions is obviated
    when the entire plan of development is restricted at once with
    a declaration of restrictions. A purchaser of property within
    such a development knows precisely what properties are—
    and what properties are not—subject to the same restrictions.
    The buyer can look at the records. The declaration tells the
    buyer what the restrictions are and to what properties they
    apply. Where the restrictions of a development are imposed
    all at once through a declaration of restrictions, the doctrine
    of implied reciprocal negative servitudes is not necessary to
    protect reasonable expectations of property buyers, because
    the buyer knows exactly what he or she is getting.
    [19] Limiting the scope of the implied reciprocal servitudes
    doctrine to situations where restrictive covenants are placed
    in individual deeds also serves the interest of promoting
    reliance on our property recording system. By definition, an
    implied servitude is not written and recorded. A prospective
    property purchaser cannot trek down to the local register of
    deeds and see if there are any implied servitudes on a particu-
    lar piece of property. The potential for unwritten, unrecorded,
    implied servitudes creates uncertainty. This uncertainty is at
    odds with our recording system, which aims to yield clear
    answers about the ownership of property. Where a purchaser
    of property can find a recorded declaration of restrictions,
    showing the scope of a development’s restrictions, the pur-
    chaser should be able to rely on that information.
    The doctrine of implied reciprocal negative servitudes
    does not apply where the grantor restricts all of the proper-
    ties within a planned development through a declaration of
    restrictions. Where the grantor uses a declaration, the express
    restrictions within the declaration control within the plan of
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    development. The doctrine does not apply to property outside
    the planned development.
    Here, the restrictive covenants placed on the Adamy sub-
    division were created through a plat and declaration in 1976.
    The restrictions were put in place as to all of the lots within
    the planned development. At the time the plaintiffs purchased
    their lots within the subdivision, the plat and declaration
    document was on file with the Butler County register of
    deeds. All of the plaintiffs had the opportunity to look at
    that record. Had they done so, they would have seen that the
    Colford Property was not a part of their subdivision and not
    subject to the same restrictions. With this information avail-
    able, the plaintiffs had no reasonable expectation that the
    Colford Property would be subject to the Adamy subdivision
    restrictions, regardless of what any real estate sales brochures
    may have implied. We affirm the district court’s grant of sum-
    mary judgment.
    3. The Plaintiffs’ Nuisance and
    Conspiracy Claims
    The plaintiffs’ nuisance and conspiracy claims are premised
    on the alleged violation of the Adamy subdivision restrictive
    covenants. Because we conclude that these restrictions do not
    apply to the Colford Property through the doctrine of implied
    reciprocal negative servitudes, these claims fail as a matter
    of law. We affirm the district court’s order granting summary
    judgment on these claims.
    VI. CONCLUSION
    For the reasons set forth in this opinion, we affirm the judg-
    ment of the district court.
    A ffirmed.
    Cassel, J., participating on briefs.