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Show MONDAY, APRIL 15, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE SEVEN State Morgan County, other divisions of land for the purpose, whether immediate or future of sale or of building development; provided, that this definition shall not include a bona fide division or partition of agricultural land for agricultural purposes . Plaintiff and Respondent. No. 13355 .... FILED April 8, 1974 Lee M. Stephens. Defendant and Appellant. Allan E. Mecham. Clerk TUCKETT, Justice: Morgan County commenced these proceedings in the district court seeking injunctive relief to restrain the defendant from selling tracts of land which the County claims is in violation of a zoning ordinance. The district court handed down a decision in favor of the County, and the defendant appeals to this court. In 1969. the defendant purchased 940 acres of land in Fry Hollow for the gracing of his beef cattle. The defendant also acquired 2, 000 acres in Deep Creek in 1970. During the year 1971, the defendant began selling lots from these tracts, and at the beginning the lots being sold comprised five acres, but later during the selling program the lots being sold contained ten acres each. Under the County's zoning ordinance, which was adopted in 1963, the tracts of land owned by the defendant were zoned Forestry F-- l. That zone permitted the following uses: Production of forest products; forest industries,-(2Public park and recreation ground. (3) Grazing and pasturing of animals; agriculture. (4) Hydroelectric dams; public utility substations and transmission lines; water pumping plants and reservoirs. (5) Accessory buildings and uses customarily incidental to the above. (6) Trailers; temporary farm, construction, or recreation in accordance with County Temporary Trailer or Trailer Court Ordinance. 1. ) The ordinance further provides: "The minimum lot area shall be not less than 100 acres .. ..." At the time these proceedings were commenced the defendant had sold 145 lots in Deep Creek, and he had three remaining in that area. Of approximately 70 lots in Fry Hollow, all but 14 had been sold, plus one 200 -- acre parcel. Morgan County here seeks to restrain the defendant from selling the lots. The contracts of sale employed by the defendant reremaining ten-accited that "the lot is sold for a bona fide agriculture purpose." It is the contention of the County that the defendant violated both the County's zoning ordinance and the County's subdivision ordinance by selling property in the F- -l zone in less than 100 acre lots. In 1972 the County amended its zoning ordinance which defined agricultural lands to require: re (1) 20 acres, or more (2) Not for investment, building development, recre- ational use, cabin or housing use. (3) A determination of the County Commission as to whether or not the parcels shall be capable of producing an income from the sale of agricultural products sufficient to justify its existence as a separate agricultural lot entity. It is the defendant's contention that his partition of the tracts of land in question and the sale of the lots after partition was for a bona fide agricultural purpose and exempt from the provisions of the County's zoning and subdivision ordinances. It is claimed, and we agree, that the provisions of U. C. A. 1953, are controlling. The pertinent portions' of Section that section are as follows: 17-27-- 27, "Subdivision" means the division of a tract, or lot or parcel of land into three or more lots, plats, sites or Keith L. Henrie and Faye Henrie, his wife, Plaintiffs and Appellants, No. 13447 FILED AprilS, Oliver D. LeFevre and William N. Baird, Defendants and Respondents. 1974 Allan E. Mecham, Clerk ELLETT, Justice: This is an appeal by the plaintiffs from an adverse judgment in a suit for specific performance tried to the court. . On March 3, 1965, Keith L. Henrie and the defendants signed a document entitled "Earnest Money Receipt and Offer to Purchase" whereby Mr. Henrie offered to buy and the defendants offered to sell 1.6 acres of land near the Brian Head ski resort in Iron County, Utah. Mr, .Henrie paid one hundred dollars to the sellers at the time and the balance of the $5, 000. 00 purchase price was to be paid as follows: Bal to be paid on pints on 10 yr basis or what otherwise agreed between William BairA Oliver Lefevre k Mr. fc Mrs. Interest at 6 per annum on the unpaid Keith L. Henrie portions of the purchase price to be included in the prescribed payments and shall begin as of date of possession which shall be on or before April 3, 1965. .... Thomas Belllston, Reed W. A she raft, William M. Barr, Blair N. Barton, Win Failner, Lawrence B. Forbush, Clarence Hollingshead, Max Jardlne, Ray Shields, Marvin E. Thornton, Wlllard P. McEwan, and Alfred C. Nielsen, No. 13322 FILED April 9. 1974 Plaintiffs and Appellants, v. Texaco, Inc. , a corporation, Defendant and Respondent. Allan E. Mecham , After a trial was had and upon conflicting testimony, the court found that the defendant's intention in selling the property in lots or less and the purchaser's intent in purchasing the lot was to use the property for other than a bona fide agricultural purpose. After a careful review of the record and the transcript of the evidence, we are of the opinion that the trial court's findings are supported by substantial evidence, and we find no grounds which would justify a reversal. The judgment of the court below is affirmed. The parties are to bear their own costs. ten-ac- re I CONCUR: J. Allan Crockett, Justice ELLETT. Justice: (Concurring Specially) concur in affirming the judgment for the reason that the only issue on this appeal is whether or not the contemplated sale fide of land was for bona agricultural purposes. The evidence was such as to in that regard. of the court the justify ruling I tried below and raised The question of whether the State or County can prevent an owner of land from selling all or a part of it under the guise of zoning regulation has not been raised. HENRIOD, Justice: (Dissenting) dissent. Defendant, in writing, sold some property. The document contained a legitimate restrictive covenant against any use save that of agriculture, - which anyone could understand, and whose only complaint about such language could be nothing less than an unreasonable, unexplainable negation thereof. -- Respectfully, I The buyers of the property to date have registered no such irrational controversy, complaint. But the plaintiff County has edged into a and the trial court into a monitor role of determining the intention of the parties, -deciding that, without any proof except the clear language itself, they meant something dehors that language, different than that of its plain and unmistakable phraseself-invit- ed ology. Those particeps to the land purchase and sale transaction said exactly what they said and wrote which was nothing offensive to a principle that one might bargain for sale of his home or his private bird sanctuary for a canary bird if he so desires, and manifests such intention by a simple, unambiguous use of the King's English. ' 1. Farwell v. Des Moines Brick L M. Co. , bb N. W. 17b (Iowa); Windsor v. Polk County, 80 N. W. 323 (Iowa); Gayland v. bait Lake County, 11 Utah 2d 307, 358 P. 2d 633. - Coombs v. Ouzpunian, 24 Utah 2d 39, '465 P. 2d 356. In my opinion, Morgan County has the wrong defendant here, - and if it has an urge to do so, could test its ability to enjoin the buyer against any use other than agricultural, if offensive to public policy or legislation. Lacking clear and convincing evidence of fraud or the like, certainly the seller could accomplish such en joinder on simple contract grounds in a proper proceeding. I think a reversal is not inappropriate here, - but without costs to the County. Callister, Chief Justice, concurs in the views expressed in the dissenting opinion of Mr. Justice Henriod. 2. The defendants did not own the land in question, but it was part of a much larger tract held under a long-ter- m lease from the State of Utah. However, they ultimately acquired title to the property. There was considerable negotiation between the parties, each side presenting to the other a proposed uniform real estate contract, neither of which was acceptable. There were demands for the return of the down payment and offers to return the same. There was also a purported agreement signed by the parties whereby the Henries would pay $10, 000. 00 for a 50 interest in all the land leased by the defendants including the 1.6 acres in question. After several years of negotiation the defendants decided there could be no agreement and sold the land to another person who is not a party to this action. There is no claim that this purchaser was not an innocent it is purchaser for value. Specific performance cannot be decreed where 1 impossible even where the impossibility is caused by the owner. It also appears that the Earnest Money Receipt and Offer to Purchase is not sufficiently definite to justify an order of specific How is the balance to be paid over the ten years? Are performance. payments to be made monthly? or annually? There is nothing concerning rights of way or appurtenant water rights, all of which were meant to be covered. Corbin on Contracts 1170. 2. Pitcher v. Lauritzen, 18 Utah 2d 368, 423 P. 2d 491 (1967). The judgment of the trial court is affirmed. Costs are awarded the to s respondents. CALLISTER. Chief Justice: initiated this action Plaintiffs, a group of Texaco lessee-dealer- s, unlawful to for recover damages price discrimination against Texaco, Inc. U.C. A. 1953, of the Unfair Practices in violation of Section Act. Defendant pleaded res judicata and moved for summary judgment. The trial court rules that the judgment in the case of Belllston v. Texaco, Inc. , in the United States District Court for the District of Utah, and as modified by the United States Court of Appeals for the Tenth Circuit, was a bar to the instant complaint, and the doctrine of res judicata applied to the claim. Defendant was granted judgment, and plaintiffs appeal. Plaintiffs filed an action in the federal district court in 1967 against 1. 5A 13-5-3(- a), (Continued on Page 8) |