Baker v. Henderson, 8778.

• Citation: 125 S.W.2d 660
• Decision Date: 15 February 1939
• Docket Number: No. 8778.,8778.
• Parties: BAKER et al. v. HENDERSON et al.
• Court: Texas Court of Appeals

125 S.W.2d 660

BAKER et al. v. HENDERSON et al.

No. 8778.

Court of Civil Appeals of Texas. Austin.

February 15, 1939.

Rehearing Denied March 8, 1939.

Error from District Court, Travis County; Walter L. Wray, Judge.

Suit by M. B. Baker and others against R. D. Henderson and another to enjoin defendants from erecting a residence on a certain lot. To review an adverse judgment, plaintiffs bring error.

Affirmed.

E. H. Smartt and Coleman Gay, both of Austin, for plaintiffs in error.

Ghent Sanderford and Felts, Wheeler & Wheeler, all of Austin, for defendants in error.

BAUGH, Justice.

The parties will be designated as in the trial court. Baker and others, residents of Westfield "A", an addition to the City of Austin, sought to enjoin the defendants from erecting a residence on lot 23, block 9, in said addition, on the ground that, as located on the lot, same violated building restrictions applicable to the entire addition; and particularly the restrictions contained in the deed to the defendants, R. D. Henderson and wife. Trial was to the court without a jury, and the injunction denied; hence this appeal by writ of error. The trial court filed extensive findings of fact and conclusions of law.

The subdivision in question was laid out in 1925, and the map or plat thereof showing blocks, lots and streets placed of record. It consisted of 18 blocks, 17 of which were divided into 288 lots. No building line restrictions were shown on the dedication as applicable to any of said lots. At the time of the trial hereof the original owners had sold and conveyed to purchasers 155 of these lots. Of this number, 122 lots, including the one here involved, contained, among others, the following restriction: "Any such building or any outbuilding erected thereon shall not be closer than 75 feet to the property line fronting on any street adjoining said premises." The deeds to 33 lots contained the same provision but the setback distance was less, varying from 60 feet to 35 feet; and 3 conveyances contained no building line restrictions. These deeds also contained the further provision that if the grantee or his assigns violated such restrictive provisions, "then it shall be lawful for any person owning land in Westfield `A' to institute and prosecute appropriate proceedings at law or in equity against the grantees, or any person or persons claiming under them, for the wrongs done or attempted, etc." The deeds to these lots by the original owners also provided that the lots so conveyed could not be subdivided for a period of five years after such conveyance.

The lot here involved was located at the southwest intersection of Forest Trail, a street 50 feet wide, running approximately north and south through said addition; and Bridle Path, a street 30 feet wide, running approximately east and west. It was bounded on the east by Forest Trail for a distance of 298.8 feet; and on the north by Bridle Path for a distance of 189 feet. It was acquired by Thomas H. Henderson from the original subdividers in 1925. In 1937, he conveyed the north 90 feet of it to his brother, Robert D. Henderson, who undertook to erect a residence on said north portion facing Forest Trail 80 feet back from its street line, but only 22 feet from the street line of Bridle Path. Thereupon plaintiffs, property owners in the immediate vicinity, brought this suit.

The plaintiffs' suit was predicated upon the contention that the setback restriction was a general scheme or plan applicable to the addition as a whole, and inuring to the use and benefit of all property owners therein; 2nd, that the 75-foot restriction applied to both streets on corner lots; and 3rd, that if no general scheme of restriction applicable to...