Brite v. Gray, 6576

• Decision Date: 19 March 1964
• Docket Number: No. 6576,6576
• Citation: Brite v. Gray, 377 S .W.2d 223 (Tex. Ct. App. 1964)
• Parties: Roy D. BRITE et ux., Appellants, v. John GRAY et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 223

377 S.W.2d 223

Roy D. BRITE et ux., Appellants, v.John GRAY et al., Appellees.

No. 6576.

Court of Civil Appeals of Texas, Beaumont.

March 19, 1964.

Frank M. Adams, Beaumont, for appellants.

King, Sharfstein & Rienstra, Beaumont, for appellees.

HIGHTOWER, Chief Justice.

This is an injunction suit that was brought as a class action by appelleeJohn Gray, et al., as homeowners in the Lakeview Terrace Addition, a residential subdivision of the City of Beaumont, against Roy D. Brite and wife, Frances H. Brite, to enjoin them from constructing and operating an animal clinic upon certain property owned by them within said addition.The Brites have appealed from the judgment of the trial court temporarily enjoining them from constructing said clinic and from using their property for other than residential purposes.It is their contention that restrictions appertaining to certain of the lots in said addition have no application to their property.

The original developer-owners of the addition, prior to the sale of any of the lots therein, filed for record a map or plat of the addition along with a dedication thereof, pertinent provisions in the latter instrument being:

'Whereas [the developers] are the owners in fee simple of Lots One (1) to Ten (10) in Block One (1); Lots One (1) to Ten (10) in Block Two (2); and Lots One (1) to Sixteen (16) in Block Three (3), all in Lakeview Terrace Addition to the City of Beaumont * * * Whereas, in consideration of the advantages to be derived therefrom, the owners have agreed to restrict all of such property as to the nature of the buildings to be erected thereon, and the purposes for which they shall be used * * * All lots in the tract shall be known and described as residential lots, except Lot One (1) in Block One (1).* * * Lot One (1) in Block One (1) is reserved for commercial purposes * * *'

Immediately south of Lot Ten (10) of Block Two (2) was a small strip of property.Contiguous to the southern boundary of this bit of property was a small lake.Although the boundaries of the addition, as evidenced by the plat of record, encompassed this small strip of property and lake, such property had not been surveyed and designated on the plat as being either a lot or lots.A filled-in portion of the lake and the strip of property contiguous thereto is the focal point of this litigation.

The instrument of dedication contained restrictions, among others, to the effect that no noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood; that no animal, livestock or poultry of any kind shall be raised, bred or kept on any lot except that household pets may be kept provided that they are not kept, bred or maintained for any commercial purposes.

Most of the lots in the addition were sold to appellees and those whom they represent.All these deeds contained the restrictions above mentioned, incorporated them therein and subjected the property conveyed thereto.At a later date the developers, having retained title to the take proper, filled in a small portion of the same and conveyed title to the remainder of the lake proper to the property owners of the addition.

Subsequently, the developers of the addition...