Brehmer v. City of Kerrville

• Decision Date: 21 January 1959
• Docket Number: No. 13415,13415
• Citation: 320 S.W.2d 193
• Parties: Herbert W. BREHMER, Appellant, v. CITY of KERRVILLE et al., Appellees.
• Court: Texas Court of Appeals

Page 193

320 S.W.2d 193

Herbert W. BREHMER, Appellant, v. CITY of KERRVILLE et al., Appellees.

No. 13415.

Court of Civil Appeals of Texas, San Antonio.

Jan. 21, 1959.

Morriss, Morriss, Boatwright & Lewis, San Antonio, Darrell G. Lochte, Kerrville, for appellant.

Clifford O. Lawrence, Joseph F. Leonard, Jr., Kerrville, M. E. Blackburn, Junction, for appellees.

BARROW, Justice.

This is a suit in the nature of a declaratory judgment action originally brought by Herbert W. Brehmer against the City of Kerrville to declare invalid a certain zoning ordinance as it applied to his property. L. B. Hough, Jr., J. D. Mahaffey, Grace Culver and Gladys Culver voluntarily intervened in the original action, and plaintiff sought relief against the interveners by a cross-action to declare invalid and unenforceable certain use restrictions relating to plaintiff's property. The original suit against the City of Kerrville grew out of the refusal of the City Council to amend the zoning ordiance of the City of Kerrville from 'A' (residential) to 'C' (limited commercial) zone as related to plaintiff's property. The findings of fact and the evidence in the case reflect that Westland Place Addition, of which Brehmer's property is a part, was originally subdivided by a partnership composed of E. Galbreith, J. L. Pampell, W. A. Fawcett, E. H. Prescott, and Hal Peterson; that all of the foregoing persons except E. H. Prescott, for whom one Charley Peterson was substituted, formed a corporation, which corporation succeeded to the rights of the partnership in the subdivision, and that upon the dissolution of the corporation the remaining Westland Place Addition properties were sold to various strangers or divided among such stockholders. No persons other than the five stockholders named ever had any interest in the corporation. Judgment of the trial court was against plaintiff, upholding the validity of the alleged 'use restriction' contained in his deed and sustaining the validity and applicability of the zoning ordinance as applied to Brehmer's property, and he had appealed.

The appeal is predicated upon nine points, which present two main contentions, first, appellant contends that the court erred in holding that the language in his deed under which he holds title, amounts to a restricting covenant which can be enforced by other property owners in the subdivision who are not in privity of estate, as against him. Second, appellant contends that the court erred in holding valid and enforceable, against him and the property in question, the zoning ordinance of the City Council of the City of Kerrville, under existing circumstances.

Appellees have filed no brief in this case, hence we must accept as true the statements of fact made by appellant. Rule 419, Texas Rules of Civil Procedure; Doherty v. Jensen, Tex.Civ.App., 174 S.W.2d 77; Rancher v. Franks, Tex.Civ.App., 269 S.W.2d 926; Davis v. Sturdivant, Tex.Civ.App., 306 S.W.2d 386.

Appellant's property is a triangular tract of land, the north boundary thereof extending 250 feet along Lois Street, the west, 175 feet along Woodlawn Street, and the southeast, 300 feet along State Highway No. 27. He acquired this property by deed in 1940 from J. L. Pampell, which deed, among other things, provided: 'No part of the property hereinafter described shall be used for business purposes * * *;' and further provided that in the event that appellant or his heirs or assigns should breach or violate any 'of the conditions above mentioned * * * the said above described and conveyed property is to revest in Grantor, J. L. Pampell, his heirs and assigns, * * *.'

Appellant's property is a part of what is known as Westland Place Addition to the City of Kerrville, lying about one mile west of the courthouse in that City. The addition was divided into 738 lots and the same type and quality of restriction was not placed in the deeds to various purchasers in said addition by the original subdividers. The deeds from the original subdividers to purchasers of 481 of said lots contained no restrictions whatever. Highway 27, which bounds appellant's property, is heavily travelled and property, other than appellant's, in Westland Place Addition which lies along said highway, is presently being used for business purposes. Appellant's property, restricted to residence use, does not have a market value exceeding $1,500, but if business use were permitted, it would have a market value of $15,000. The record shows that no general plan or scheme of restriction applicable to said addition was ever filed for record, and further shows that appellant's grantor, J. L. Pampell, has quitclaimed and released to appellant any and all reversionary rights, title and interest in and to appellant's property.

The first question to be determined is whether the appellee interveners, as owners of other lots in Westland Place Addition, are entitled to rely on the restrictive provision contained in appellant's deed.

The deed from Pampell to appellant shows on its face that the restriction contained therein was a personal one in favor of Pampell and his heirs and assigns, and unless there was a general scheme or plan for restriction in the addition, the restriction in appellant's deed cannot be relied on by interveners as owners of other lots in the...