Brown v. Wehner
| Decision Date | 23 October 1980 |
| Docket Number | No. 17768,17768 |
| Citation | 610 S.W.2d 168 |
| Parties | Russell E. BROWN et ux, Judy Brown, Appellants, v. Mr. & Mrs. E. L. WEHNER et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Richard I. Colton, Houston, for appellants.
Delange, Hudspeth, Pitman & Katz, Eugene Pitman, Houston, for appellees.
Before PEDEN, EVANS and WARREN, JJ.
This is a declaratory judgment action to judicially construe the restrictions of Pine Wood Estates, a subdivision in Harris County.
The sole question on appeal is whether these restrictions permit two residences to be located on a parcel of land comprising less than two original lots as such lots are designated on the subdivision plat.
The plaintiffs own a parcel consisting of lot 1 and the adjoining 45 feet of lot 18 in block 1, located as shown on the attached subdivision plat. One residence has already been constructed on the remainder of lot 18, and the plaintiffs propose to erect two additional residences on this parcel, resulting in three residences being situated within the boundaries of two of the original lots.
The trial court denied the plaintiffs' motion for summary judgment and granted that of the defendants, impliedly finding that the restrictions allowed only one residence per lot as the lots were originally platted.
The pertinent paragraphs of the subdivision restrictions are:
4 BUILDING SITES. No building site shall have less than ten thousand (10,000) square feet in area, or a front width of less than sixty-one (61) feet, and no building may be erected on property having an area or frontage less than these minimum requirements. The side and front line clearances provided in the preceding restriction (that is, clearance from the property lines of the building site) shall be continuously maintained as to all improvements and there shall be no resubdivision or division of lots in such manner as will impair the minimum side and front line clearance required. (Emphasis added).
7 ... (A)ll lots (or building sites composed of one or more lots) in Pine Wood Estates, shall be used for single family residential purposes only, and no structure shall be altered, placed, erected, or permitted to remain on any lot (or building site) except one single family residence ... (Emphasis added).
The plaintiffs contend that the summary judgment proof shows that three residences may be located on their parcel of land in such manner that the building site property lines do not impair the minimum side and front line clearances specified in paragraph 4 of the restrictions. Thus, the plaintiffs argue that their plan does not violate the restrictions because the restrictions only prohibit the "resubdivision or division of lots in such manner as will impair the minimum side and front clearance required."
The appellees do not dispute the factual basis for the plaintiffs' contention, but they argue that the provisions of paragraph 7 of the restrictions should be interpreted to permit only one residence on each original lot as such lots are designated on the subdivision plat. The defendants argue persuasively that the subdivision plat reflects a uniform scheme and plan for the development of Pine...
To continue reading
Request your trial
-
Davis v. Huey
...on notice that his lot was subject to the placement limitation sought to be enforced. 5 See Brown v. Wehner, 610 S.W.2d 168, 170 (Tex.Civ.App. Houston (1st Dist.) 1980, writ ref'd n. r. e.). Even more significant is the following testimony of Q All right. Now, it is true, as I recall it, si......
-
Sharp v. Devarga, No. 03-05-00550-CV (Tex. App. 1/8/2010)
.... . . on any lot." See id. at 203. More recent decisions shed light on this issue. In both Brown v. Wehner, 610 S.W.2d 168 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.), and Herbert v. Polly Ranch Homeowners Association, 943 S.W.2d 906 (Tex. App.-Houston [1st Dist.] 1996, no ......
-
Wilmoth v. Wilcox
...and the restrictive clause must be construed strictly against the party seeking to enforce it. Brown v. Wehner, 610 S.W.2d 168, 170 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). The words used in the restriction, and the restriction as a whole, may not be enlarged, extended, ......
-
Turner v. England
...322 S.W.2d 516 (Tex.1958); Baker v. Henderson, 153 S.W.2d 465 (Tex.Com.App.1941, opinion adopted); Brown v. Wehner, 610 S.W.2d 168 (Tex.Civ.App.-Houston (1st Dist.) 1980, writ ref'd n.r.e.); Head v. Thomason, 430 S.W.2d 369 (Tex.Civ.App.-Eastland 1968, writ ref'd The testimony shows that th......