Opinion
Argued May 8, 1972
Remanded May 24, 1972 Rehearing denied; clarification allowed June 29, 1972 Petition for rehearing denied August 1, 1972
IN BANC
Appeal from Circuit Court, Lane County, EDWARD LEAVY, Judge.
REMANDED.
James H. Anderson, Eugene, argued the cause for appellants. With him on the briefs were Thompson, Mumford Woodrich, Eugene.
Robert W. Hill, Eugene, argued the cause for respondents. On the brief were Hill Schultz, Eugene.
O'CONNELL, C.J.
This is an appeal from a decree entered on a mandate of this court in the case of Johnson v. Campbell, 259 Or. 69, 487 P.2d 69 (1971). Defendants contend that the trial court erred in formulating the decree upon remand from this court.
On the original appeal the only question presented was the construction of a provision of a contract requiring that "all deeds shall contain a clause providing that all property shall be for residential use only * * *."
The trial court construed the provision to mean that the property was to be used exclusively for single family residence purposes. We reversed, holding that the restriction was not intended to preclude the construction of multiple family units. We remanded the cause "with directions to enter a decree consistent with this opinion."
To make the decree consistent with our opinion it was necessary only to revise that part of the decree which provides that "such restrictive covenants prevent the building of multiple family units on said property." This revision could be effected simply by inserting and adding the words "do not" to the decree so that it reads "such restrictive covenants do not prevent the building of multiple family units on said property."
In all other respects the original decree of the trial court stands as it was entered inasmuch as there was no appeal from the decree on any other ground than the scope of the restriction. Any other issues which are still alive and not barred by the doctrine of res judicata can be raised only by another suit or action.
The cause is remanded with directions to revise the original decree as explained above.
ON PETITION FOR REHEARING
Plaintiffs seek a rehearing for the purpose of clarifying this court's opinion of May 24, 1972, 497 P.2d 666 in which we remanded for revision an amended decree entered by the trial court after our initial decision in this case, Johnson v. Campbell, 259 Or. 69, 487 P.2d 69 (1971).
Plaintiffs now contend that if the trial court adopts a literal interpretation of our most recent opinion there is danger that they will be denied certain rights which, they argue, were properly granted by the trial court's amended decree entered upon our remand in the original appeal.
In the opinion on the second appeal it was our purpose to make clear that only one issue was raised on the original appeal and that upon remand the original decree could not, by modification, be used as a vehicle for determining other issues which defendants raised upon their second appeal. We did not intend to say that the wording of the original decree should be preserved even though it would be inconsistent with the rationale of our original opinion.
Upon remand the trial court entered an amended decree which made the modifications in the original decree necessary to carry out our mandate. Since the amended decree is consistent with the basis for our first opinion, we confirm it as carrying out our original mandate. In all other respects we adhere to our opinion of May 24, 1972.
The petition for clarification of our opinion is therefore allowed.
Rehearing denied; clarification allowed.
Hill Schultz, Eugene, on the petition.
No appearance contra.
REHEARING DENIED; CLARIFICATION ALLOWED.
Plaintiffs seek a rehearing for the purpose of clarifying this court's opinion of May 24, 1972, 497 P.2d 666, in which we remanded for revision an amended decree entered by the trial court after our initial decision in this case, Johnson v. Campbell, 259 Or. 69, 487 P.2d 69 (1971).
Plaintiffs now contend that if the trial court adopts a literal interpretation of our most recent opinion there is danger that they will be denied certain rights which, they argue, were properly granted by the trial court's amended decree entered upon our remand in the original appeal.
In the opinion on the second appeal it was our purpose to make clear that only one issue was raised on the original appeal and that upon remand the original decree could not, by modification, be used as a vehicle for determining other issues which defendants raised upon their second appeal. We did not intend to say that the wording of the original decree should be preserved even though it would be inconsistent with the rationale of our original opinion.
Upon remand the trial court entered an amended decree which made the modifications in the original decree necessary to carry out our mandate. Since the amended decree is consistent with the basis for our first opinion, we confirm it as carrying out our original mandate. In all other respects we adhere to our opinion of May 24, 1972.
The petition for clarification of our opinion is therefore allowed.