153 S.W.2d 465 (Tex.Com.App. 1941), 2337-7575, Baker v. Henderson

Docket Nº2337-7575
Citation153 S.W.2d 465, 137 Tex. 266
Opinion JudgeGERMAN, Commissioner.
Party NameBAKER et al. v. HENDERSON et al.
Attorney[137 Tex. 267] 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.
Case DateApril 23, 1941
CourtCourt of Commission of Appeals of Texas

Page 465

153 S.W.2d 465 (Tex.Com.App. 1941)

137 Tex. 266

BAKER et al.

v.

HENDERSON et al.

No. 2337-7575

Court of Commission of Appeals of Texas, Section A.

April 23, 1941

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by M. B. Baker and others against Robert D. Henderson and another to enjoin defendants from erecting a residence on a certain lot. Judgment for defendants was affirmed by Court of Civil Appeals, 125 S.W.2d 660, and plaintiffs bring error.

Judgments of Court of Civil Appeals and of district court affirmed.

Page 466

[137 Tex. 267] 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.

GERMAN, Commissioner.

This suit was brought by M. B. Baker and others as plaintiffs, and they will be so designated here. It was against R. D. Henderson and another. They will be referred to as defendants. [137 Tex. 268] Henderson is the real defendant. The purpose of the suit was to obtain an injunction restraining defendants from erecting a residence on a part of Lot No. 23, Block No. 9, in what is known as Westfield A, an addition to the City of Austin. Lot No. 23 is located at the intersection of Bridal Path, a street 30 feet in width, with Forest Trail, a street 50 feet in width. It abuts 298.8 feet on Forest Trail and 189 feet on Bridal Path. Plaintiffs own lots or parts of lots in Block No. 9, their property facing on Bridal Path. The addition mentioned was laid out in 1925 and it appears there was a provision to the effect that lots could not be subdivided within five years.

Prior to September 28, 1937, Thomas H. Henderson owned all of Lot No. 23. On that date he conveyed the north 87.47 feet to defendant Robert D. Henderson, the part conveyed facing 87.47 feet on Forest Trail and 189 feet on Bridal Path. It was on this part of said Lot 23 that defendant proposed to erect his residence.

The trial court filed elaborate findings of fact. After finding that Thomas H. Henderson conveyed to Robert D. Henderson the north portion of Lot 23 containing the restrictions hereinafter set out, there were the following findings:

"13. That prior to and at the time of the conveyance from Thomas H. Henderson to Robert David Henderson and Gladys Whitley Henderson, the said Thomas H. Henderson knew that the defendants, Robert David Henderson and wife, were purchasing same for the purpose of erecting a residence for their home thereon, and that notwithstanding the restriction in the deed of conveyance, the said Thomas H. Henderson specifically agreed that the defendants, Robert David Henderson and Gladys Whitley Henderson, might erect their said residence on said land conveyed to them at a distance of less than 75 feet from Bridal Path, and that he, the said Thomas H. Henderson, waived the restriction in the deed as to building closer than 75 feet to the property line fronting on any street adjoining said premises.

"16. That the portion of Lot 23, Block 9, Westfield 'A' owned by the defendants, Robert David Henderson and Gladys Whitley Henderson on which they have begun to erect their residence [137 Tex. 269] fronts and is fronting on Forest Trail in said Westfield 'A' and that the proposed residence will be set back more than 75 feet from the property line fronting on said Forest Trail.

"17. That the residence proposed to be erected by the defendants on the portion of Lot 23, Block 9, Westfield 'A' owned by Robert David Henderson and Gladys Whitley Henderson will front and will be fronting on Forest Trail, and that said residence will be set back more than 75 feet from Forest Trail, and that the side of such residence will be 22 feet from Bridal Path.

"18. That it will be impossible to erect the residence proposed by the defendants on the lot owned by Robert David Henderson and Gladys Whitley Henderson if they are required to erect said residence at a distance of 75 feet from both Forest Trail and Bridal Path, and that it will be impossible to erect any character of residence on said lot if required to set same back 75 feet from both Forest Trail and Bridal Path, and that said lot will be rendered valueless and worthless to the defendants, if they are prevented from erecting a residence thereon at a distance of less than 75 feet from Bridal Path.

"19. That the value of the lot owned by the defendants, Robert David Henderson and Gladys Whitley Henderson, without the residence thereon is the sum of $1750.00, and that the defendants paid the value of $1500.00 therefor; that there is not

Page 467

now and has never been any general scheme of restrictions in said Westfield 'A' as to building with respect to street lines.

"27. That the alleged 75 foot restriction was never intended by the original owners and developers to apply to any of the corner lots in said Westfield 'A', so as to prevent the purchasers from building thereon at a distance closer than 75 feet to one or both of the streets abutting said lots.

"28. That the residence proposed to be erected by the defendants on the property of Robert David Henderson and Gladys Whitley[137 Tex. 270] Henderson will comply with the alleged 75 foot restriction, because same is and will be set back more than 75 feet from Forest Trail, the street on which said residence will front, and on which said lot fronts.

"30. That Robert David Henderson and wife, Gladys Whitley Henderson, purchased the said North part of Lot 23, Block 9 in good faith and in the good faith belief that they would be permitted to erect their residence thereon at a distance of more than 75 feet fronting on Forest Trail and at a less distance than 75 feet from Bridal Path, and that such belief was induced and caused by the plaintiffs and other property owners in Westfield 'A' who had erected and acquiesced in the erection of residences in said Westfield 'A' at a less distance than 75 feet from a street or streets in said Westfield 'A'."

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61 practice notes
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...of the changes in conditions which had taken place since the original restrictions were placed upon the addition. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465. George K. Brasher and Guy M. Boyer for respondents. (1) There was no provision in the original plat for the owners of a majorit......
  • 235 S.W.2d 360 (Mo. 1950), 41669, Juden v. Southeast Mo. Tel. Co.
    • United States
    • Missouri United States State Supreme Court of Missouri
    • December 11, 1950
    ...191 U.S. 492, 24 S.Ct. 164, 48 L.Ed. 274; Wiggins Ferry Co. v. Chicago & A. Ry. Co., 128 Mo. 224, 27 S.W. 568; Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Cates v. Northwestern Tel. etc. Co., 60 Minn. 539, 63 N.W. 111. (8) The contex......
  • 384 S.W.3d 395 (Tex.App.-Houston [14 Dist.] 2012), 14-11-00268-CV, Wiese v. Heathlake Community Ass'n, Inc.
    • United States
    • Texas Court of Appeals of Texas
    • March 27, 2012
    ...where covenant contained ambiguous term and parol evidence was needed to determine intent of the parties); see also Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465, 470-71 (Tex.Com.App.1941) (construing covenant in favor of conveyance despite it being " certainly ambiguous" ); Hi......
  • 793 S.W.2d 14 (Tex.App. - Austin 1989), 3-86-068, Evans v. Pollock
    • United States
    • Texas Court of Appeals of Texas
    • March 15, 1989
    ...that all doubts should be resolved in favor of the free and unrestrained use of property and against restrictions. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941). If, from the language of the deeds and in light of the conduct of the parties and other surrounding circumstances, the ......
  • Request a trial to view additional results
61 cases
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...of the changes in conditions which had taken place since the original restrictions were placed upon the addition. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465. George K. Brasher and Guy M. Boyer for respondents. (1) There was no provision in the original plat for the owners of a majorit......
  • 235 S.W.2d 360 (Mo. 1950), 41669, Juden v. Southeast Mo. Tel. Co.
    • United States
    • Missouri United States State Supreme Court of Missouri
    • December 11, 1950
    ...191 U.S. 492, 24 S.Ct. 164, 48 L.Ed. 274; Wiggins Ferry Co. v. Chicago & A. Ry. Co., 128 Mo. 224, 27 S.W. 568; Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465; Julia Bldg. Assn. v. Bell Tel. Co., 88 Mo. 258; Cates v. Northwestern Tel. etc. Co., 60 Minn. 539, 63 N.W. 111. (8) The contex......
  • 384 S.W.3d 395 (Tex.App.-Houston [14 Dist.] 2012), 14-11-00268-CV, Wiese v. Heathlake Community Ass'n, Inc.
    • United States
    • Texas Court of Appeals of Texas
    • March 27, 2012
    ...where covenant contained ambiguous term and parol evidence was needed to determine intent of the parties); see also Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465, 470-71 (Tex.Com.App.1941) (construing covenant in favor of conveyance despite it being " certainly ambiguous" ); Hi......
  • 793 S.W.2d 14 (Tex.App. - Austin 1989), 3-86-068, Evans v. Pollock
    • United States
    • Texas Court of Appeals of Texas
    • March 15, 1989
    ...that all doubts should be resolved in favor of the free and unrestrained use of property and against restrictions. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941). If, from the language of the deeds and in light of the conduct of the parties and other surrounding circumstances, the ......
  • Request a trial to view additional results