Abernathy v. Adoue

• Decision Date: 14 April 1932
• Docket Number: No. 2099.,2099.
• Citation: Abernathy v. Adoue, 49 S.W.2d 476 (Tex. App. 1932)
• Parties: ABERNATHY v. ADOUE et al.
• Court: Texas Court of Appeals

49 S.W.2d 476

ABERNATHY v.ADOUE et al.

No. 2099.

Court of Civil Appeals of Texas. Beaumont.

April 14, 1932.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by W. E. Abernathy against J. B. Adoue and others, in which others intervened.From the judgment, plaintiff appeals.

Affirmed.

Albert R. Young, of Houston, for appellant.

Lewis Fisher, of Houston, for appellees.

WALKER, J.

Westmoreland addition to the city of Houston, Harris county, was platted and its streets and alleys dedicated by South End Land Company, a corporation, as shown by map, plat, and dedication dated the 1st day of July, 1903, and filed for record in the deed records of Harris county.Within a short while South End Land Company sold out to various and sundry purchasers all the lots in this addition.One of the streets in this addition was designated on the plat and map as Burlington avenue.On the 28th day of November, 1904, the South End Land Company sold lots 1 and 2 in block 10, fronting on Burlington avenue, in this addition, to Mrs. George C. Waties.In this deed the use of these lots was restricted as follows: (a) The building line was fixed at 20 feet from and parallel with the west boundary line of Burlington avenue, (b) the lots could be used for residential purposes only; and (c) as long as South End Land Company owned one-half the frontage abutting upon Burlington avenue it reserved the right to enter upon and repair this avenue.It was stipulated in Mrs. Waties' deed that these conditions should be deemed "covenants running with the land," and any person owning land fronting on Burlington avenue was given the right "to prosecute appropriate proceedings in law or in equity" to prevent the violation of the restrictions.All the deeds to property fronting on Burlington avenue contained similar restrictions, as did the deeds to the other property in the addition.On the 9th day of May, 1928, for a consideration of $25,000, H. A. Meyer, holding under Mrs. Waties, deeded these two lots to the city of Houston.The consideration paid was the reasonable cash market value of the lots burdened with the restrictions originating in Mrs. Waties' deed.The city bought these lots for the purpose of extending Milam street across them into West Alabama street, which was done.The result was that the area of these lots was greatly reduced and they were left in the form of a triangle fronting 110 feet on Burlington avenue, 32 feet on West Alabama street, and 134 feet on Milam street.After the lots were reduced in area there was situated thereon a small but substantial dwelling house.The city sold these fractional lots to A. L. Bettencourt for about $8,000 and he sold them to appellant on a recited consideration of $9,000.The amount received by the city and the amount paid by appellant represented the reasonable cash market value of these fractional lots, burdened as they were with the restrictions originating in the deed to Mrs. Waties.The deeds from the city to Bettencourt and from him to appellant did not contain the restrictions originating in Mrs. Waties' deed, but both Bettencourt and appellant bought with knowledge of these restrictions, and that these, or similar restrictions, were in all the other deeds to the property in Westmoreland addition, and of the general plan or scheme under which the lots were originally platted and sold.While these fractional lots were worth only $9,000 burdened with the restrictions in question at the time appellant acquired his title, they were, in fact, worth $25,000 as business property, to be used for filling station purposes.Holding a permit from the city of Houston to build a filling station on these lots, appellant brought this suit against all the owners of property fronting on Burlington avenue to cancel the restrictions in his title and for grounds of relief made by his petition the issues which will be hereinafter discussed.It is sufficient to say of the answer of defendants that they pleaded general and special demurrer and general denial.Owners of other property in Westmoreland addition not fronting on Burlington avenue intervened on allegations that all the lots in this addition were sold by South End Land Company under a general plan or scheme to make of the addition a highly restricted residential district and that it would injure their property to cancel these restrictions on appellant's lots.Appellant filed exceptions to these pleas of intervention, but if the court ruled thereon the rulings are not shown by judgments, but there appear in the record certain bills of exceptions which purport to reflect the rulings of the court.Upon trial to the court without a jury judgment was entered against appellant upon all issues made by his petition.On his motion the trial court filed conclusions of fact and law.The appeal was duly prosecuted to the Galveston Court of Civil Appeals and transferred to this court by order of the Supreme Court.

Opinion.

Appellant has not presented his record in such way as to complain of the court's rulings on his exceptions to the pleas of intervention, even if it be conceded that the court ruled thereon.Rulings on exceptions and demurrers cannot be preserved by bills of exception but only by judgments duly entered of record.Ineeda Laundry v. Newton, (Tex. Civ. App.)33 S.W.(2d) 208.

But the filing of these pleas was justified by the allegations of the interveners that the general plan or scheme of South End Land Company in platting and dedicating and selling Westmoreland addition was to create a highly restricted residential district and that the removal of the restrictions from appellant's lots would injure their property.While the interveners were not given a specific right, by the deeds under which they held, to contest appellant's petition, yet, under general principles of equity, they had the right to do so by showing that the cancellation of these restrictions would violate the general plan or scheme under which they purchased their property, resulting in damage to their property.This doctrine is clearly sustained by the authorities.Curlee v. Walker, 112 Tex. 40, 244 S. W. 497;Green v. Gerner(Tex. Com. App.)289 S. W. 999;Green v. Gerner(Tex. Civ. App.)27 S.W.(2d) 828(writ refused);Couch v. Southern Methodist University(Tex. Civ. App.)290 S. W. 256;Hooper v. Lottman(Tex. Civ. App.)171 S. W. 270.

Appellant was not entitled to any relief against the first restriction because it clearly appeared that, where "west boundary line" of Burlington avenue was referred to in the restrictions, "east boundary line" was meant; nor was he entitled to relief against the third restriction because that was personal to South End Land Company and it was not a party to the suit.

That the lots were more valuable— much more valuable—for business purposes than for residential purposes did not entitle appellant to relief against any of the restrictions.The law on this proposition is thus stated by 18 C. J. 400, Note 88: "The mere fact that lots subject to building restrictions have become more valuable for business than for residential purposes as limited by the restrictions, does not of itself, justify equity in annulling the restrictions."

It is a sound legal proposition to say, with appellant, "that changed conditions in a neighborhood brought about by agencies outside of the parties themselves will terminate a building restriction limiting or restricting property to use for residential purposes only."But that proposition does not aid appellant.So far as the changed conditions relate to the form and size of his property, that condition was not brought about by a stranger to the title, but immediately and directly by the grantor of appellant and Bettencourt.Besides, there is no merit in the contention that change in the form and size of these lots destroyed their value for residential purposes.On this issue the court found: "That said property is suitable for residence purposes, that plaintiff bought said property with the full knowledge of its conditions and restrictions and since such purchase has made no effort to rent said property for residence purposes, nor has he made any effort to put the building on said premises in such condition as to attract prospective tenants, that the brick bungalow on said land is not connected with sewer, gas, electric lights or water, though all of these conveniences are available to plaintiff."Since this finding is not challenged by appellant, it is not necessary to quote evidence in its support.

Again, it is contended that the business area of the city of Houston has so encroached upon this property as to make it unfit for residential purposes.On this issue the court found:

"The City of Houston has grown and its business area has extended in all directions of the compass very considerably during the past ten years and that there are numerous business houses on Milam Street in the City of Houston, none however, than the Humble Filling Station, closer than five blocks to the property owned by plaintiff and described in this petition.That such business encroachments are not of such a nature as to demand the removal of the restrictions on plaintiff's property; that said property is suitable for residence purposes.

"* * * That at the time the plaintiff purchased the property described in his petition, and prior thereto, a portion of said lots had been cut off by the City of Houston, and that its shape had been altered from what it was as shown on the plat of Westmoreland Addition; that the purchase of said lot by the plaintiff was made subsequent to the time that the City of Houston had opened Milam Street to connect with West Alabama Street, and that plaintiff knew at the time of such purchase of said lot that Milam Street cut off a portion of said property, and that said property was restricted against use for business purposes.

"That at the time plaintiff purchased said...