Baker v. Henderson

• Decision Date: 23 April 1941
• Docket Number: No. 2337 - 7575.,2337 - 7575.
• Citation: 153 S.W.2d 465
• Parties: BAKER et al. v. HENDERSON et al.
• Court: Texas Supreme Court

153 S.W.2d 465

BAKER et al. v. HENDERSON et al.

No. 2337 - 7575.

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.

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. 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 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 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 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'."

Under the heading of Conclusions of Law the court made the following additional findings:

"1. I conclude that there was never any general scheme or plan established in Westfield `A' requiring residences to be set back 75 feet from the street on which the property abuts.

"2. I conclude that there was never any general plan or scheme of restrictions established in Westfield `A' applying to corner lots requiring buildings to be set back 75 feet from each of the streets abutting said corner lots.

"3. I conclude that the defendants have and are complying with the restriction contained in the deed from the original grantors and developers to Thomas H. Henderson and in the deed from Thomas H. Henderson to Robert David Henderson and Gladys Whitley Henderson by erecting their residence more than 75 feet from Forest Trail, the street on which the lot of defendants and the residence to be erected thereon fronts.

"4. I conclude that the plaintiffs and each of them by acquiescing and permitting other residences on lots in Westfield `A' where the conveyances contain the same restrictions as are in the conveyances to defendants, have waived their rights, if any they ever had, to complain of the residence proposed to be erected by defendants on their lot, and that they are now estopped to complain of the erection by the defendants of the proposed residence on their lots.

"5. I conclude that the restriction `Any such building or any outbuildings erected thereon shall not be closer than 75 feet to the property line fronting on any street adjoining said premises,' appearing in many deeds of conveyance to lots in Westfield `A' has been generally disregarded, ignored, violated and abrogated by the owners of property in Westfield `A'."

The trial court denied the injunction, and that judgment was affirmed by the Court of Civil Appeals, 125 S.W.2d 660.

The opinion of the Court of Civil Appeals contains a full discussion of the reasons given for upholding the finding that the general scheme or plan had been abandoned, and for the further holding that the restrictions or covenants relied upon by plaintiffs could not be enforced.

There is no attack upon any of the foregoing findings as being without support in the evidence, except as may be shown by assignments hereinafter set out.

We conclude that the evidence is amply sufficient to support all findings of fact made by the trial court.

In application for writ of error there are two assignments which appear to question findings of fact made by the trial court. They are as follows:

"Third Assignment of Error.

"The Court of Civil Appeals erred in holding that violations of setback restrictions in Westfield `A' were sufficiently numerous and flagrant to constitute an abandonment of any general scheme of restrictions that might have existed in Westfield `A'.

"Fourth Assignment of Error.

"The Court of Civil Appeals erred in holding that failure to object to violations of restrictive covenants which did not injuriously affect them precluded plaintiffs in error from enforcing the restrictive covenants involved in this case."

At the most, the third assignment merely goes to the sufficiency of the evidence, and we are without jurisdiction to review the matter.

The fourth assignment, even if well taken, can have no controlling effect upon the decision, as will more fully hereinafter appear.

Plaintiffs present two other assignments in their application, and they are as follows:

"First Assignment of Error.

"The Court of Civil Appeals erred in holding that violation of restrictive covenants affecting other property in Westfield `A' prior to September 28, 1937, was material or relevant to this case, since the record shows that on that date Thomas H. Henderson conveyed the property involved in this case to Robert David Henderson by deed providing that no residence should be erected thereon `closer than 75 feet to the property line fronting on any street adjoining said premises,' and the effect thereof was to create a valid and binding restriction regardless of prior violations of similar restrictions.

"Second Assignment of Error.

"If...