Nature of the Case
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Facts
P and D are the owners of adjacent parcels of real property. D's lot is on the downhill side of P's lot and is encumbered by a restrictive covenant which benefits P's property. When the covenant was executed, the house in which P now lives was almost completed and D's property was bare land. The covenant was executed so that the value of P's as a 'view Lot' would not be impaired by future erections on D's lot. No second story on D's lot was ever to be erected on any building except in the area which is within 51 feet of the front lot line and that any one-story dwelling erected anywhere on the lot other than in the 51-foot area shall have a roof pitch of not to exceed 2:12. This covenant was stated as: shall be appurtenant to and forever run with the land as a burden upon said Lot 10 for the benefit of said Lot 9. In the fall of 1980, D began construction of a house on his property, a substantial portion of which lies outside the 51-foot area. As soon as it became apparent to P that the house was going to ruin their view, they attempted to obtain a temporary injunction to halt construction. It was denied, and D was clearly told that any further construction was at his own peril. It is beyond dispute that D's house substantially impairs P's western view. After completion P's request for a permanent injunction was tried. The court held that D's house violated the covenant, and that damages would be very difficult, if not impossible, to determine. It then issued a mandatory injunction ordering removal of the encroaching structure. D appealed.
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