SWANSON V. WARNER

865 P.2d 493 (1993)

A single tree is not a hedge or row of trees.

Property dispute regarding entitlement to a view decided by the Oregon Court of Appeals en banc. Warner’s planted a mimosa tree in their front yard – it grew. Swanson, the next door neighbor, sued the Warners claiming a violation of restrictive covenants (HOA rules) governing the local neighborhood, and nuisance because the tree blocked his view. The court strictly construed the wording of the restrictive covenants which provided that “no hedge or row of trees or shrubs shall be planted or maintained which shall substantially block the view of any adjoining lot.”

The Court held: “Here, the covenant prohibits the planting of a “row of trees.” Not even plaintiffs argue that a single tree is a “row of trees,” at least not as those words are commonly understood. Instead, they argue that the words “row of trees” should be construed more broadly than their plain and ordinary meaning to accommodate the broader purposes of the covenant. That, however, is precisely the sort of “enlargement” of restrictive covenants “by construction” that is not permitted.”