Bramwell

Plaintiffs and respondents are the owners of residence property in a tract of land in the Mnirlands area of La Jolla. They brought this action to enjoin the construction of a residence upon a lot owned by defendant and appellant Howard C. Kuhle and wife and upon which defendant and appellant Schwarzkopf is engaged as a contractor. Plaintiffs claim that the proposed construction is in violation of restrictions placed on the property by the sub-dividers, referred to in the restrictions as “owners.” No contention is made that the restrictions are invalid or inoperative as to the property in the subdivision. The contentions of defendants are that they complied with them and that they obtained the approval of their plans and specifications by the original sub divider after this action was brought and that other property holders in the subdivision have waived any right they had, under the restriction agreement, to insist upon enforcement of them.

The principal question arises over the construction of the terms of the instrument and the true intent of the parties in connection with it. The facts reveal, as gleaned from the record and the memorandum opinion of the learned trial judge in…