Burns v. Wood

• Decision Date: 23 June 1972
• Docket Number: No. 17322,17322
• Citation: Burns v. Wood, 482 S.W.2d 295 (Tex. Ct. App. 1972)
• Parties: Bobby M. BURNS, Appellant, v. Edgar A. WOOD, Appellee.
• Court: Texas Civil Court of Appeals

Page 295

482 S.W.2d 295

Bobby M. BURNS, Appellant, v.Edgar A. WOOD, Appellee.

No. 17322.

Court of Civil Appeals of Texas Fort Worth.

June 23, 1972.

Rehearing Denied July 21, 1972.

Protho & Sellers and Lee Sellers, Wichita Falls, for appellant.

Banner & McIntosh, Fillmore, Lambert, Farabee & Purtle, Wichita Falls; DeLange, Hudspeth, Pitman & Katz, and Eugene J. Pitman, Houston, for appellee.

OPINION

BREWSTER, Justice.

This case involves restrictive covenants.The plaintiff, Bobby M. Burns, sued defendant, Edgar A. Wood, for an injunction to keep the latter from building and operating multi-unit apartment houses on certain land owned by Wood.

Following a jury trial judgment was rendered to the effect that the plaintiff, Burns, and two intervenors, Dubose Pipes and James H. Watson, take nothing by their suit.This is an appeal by the plaintiff, Burns, from that decree.Intervenors, Pipes and Watson, did not appeal.

Plaintiff had alleged in substance that in 1926 a corporation, Park Place Realty Company, had platted and dedicated a tract of land that it then owned into an addition known as Park Place Subdivision, an addition to the City of Wichita Falls, Texas; that plaintiff owns certain blocks that are a part of that addition and that plaintiff holds title in privity with and under a regular chain of title from Park Place Realty Company, the dedicator; that defendant owns Lot 7--A in Block 9 of Singleton Addition, Section 3, which property is also located in Park Place Subdivision; that Singleton Addition, Section 3, is a part of a replat of Park Place Subdivision; that defendant's property is subject to restrictive covenants imposed by the plat and dedication of Park Place Subdivision which covenants prevent the construction and operation of apartment houses on defendant's land; and that defendant acquired his land by a chain of conveyances originating with Park Place Realty Company.

The defendant had admittedly started construction of apartment houses on his lot not long before plaintiff brought this suit to enjoin such construction.

Plaintiff on this appeal urges five points of error.His first point is that the trial court erred in overruling plaintiff's motion for judgment notwithstanding the verdict.Plaintiff contends in three of his points of error that the trial court committed reversible error in three separate instances in overruling his objections to certain evidence.In his other point of error plaintiff contends that the court committed reversible error in sustaining defendant's objection to certain evidence offered by the plaintiff.

The defendant(appellee) replies that the trial court did not err in overruling plaintiff's motion for a judgment notwithstanding the verdict because the plaintiff, upon the trial, did not offer sufficient evidence to establish even a prima facie case entitling him to have the defendant enjoined from constructing the apartment houses.Defendant says that since plaintiff did not offer sufficient evidence to establish prima facie his right to the relief sought that the defendant was for that reason entitled to judgment and that the court therefore properly overruled plaintiff's motion for judgment and properly rendered the take nothing judgment.Defendant's reply to the points of error relating to the overruling of plaintiff's objection to evidence is that such rulings, even if erroneous, could not be harmful or reversible error because at the conclusion of all the evidence offered the defendant was entitled to an instructed verdict anyway.He says that since this was true the plaintiff could not have been harmed by admitting the evidence.

We have concluded that defendant's contentions are correct.

The burden of proof was upon the plaintiff, who is seeking to enforce the restrictive covenant on defendant's land, to prove that the defendant's land is in fact legally burdened with such restriction, and further, that such restriction was imposed upon defendant's land for the benefit of land owned by the plaintiff.McCart v. Cain, 416 S.W.2d 463(Fort Worth Civ.App.1967, ref., n.r.e .);Jobe v. Watkins, 458 S.W.2d 945(Fort Worth Civ.App.1970, ref., n.r.e.);andBrehmer v. City of Kerrville, 320 S.W.2d 193(San Antonio Civ.App.1959, no writ hist.).

The plaintiff in this case introduced into evidence a plat and dedication which recited that it was executed in 1926 by Park Place Realty Company, a corporation.The plat and dedication purported to dedicate the tract of land therein described as '. . . Park Place Subdivision of a portion of the J. A. Scott Surveys Nos. Eight (8) and Nine (9), Wichita County, Texas, . . .' and undertook to impose the restrictions in question on the use of the land.

Proof was offered that both the defendant's lot in question and the land owned by the plaintiff were located within the boundaries of the tract of land covered by this plat and dedication.

But there was no evidence offered during the trial, other than this plat and dedication referred to, that tends to prove that this corporation, Park Place Realty Company, was in fact the owner of the land involved and that by reason of being the owner that it had a right to burden such land with restrictive covenants.

There was no evidence tending to show that Park Place Realty Company was the common source of title of the lots owned by both plaintiff and defendant.There was no evidence tending to show that Park Place Realty Company was even in the chain of title to either the lot owned by the plaintiff or the one owned by defendant or that either the plaintiff or the defendant held title to their land in privity with and under a regular chain of title from Park Place Realty Company.

The plaintiff was not a party to the 1926 plat and dedication of Park Place Subdivision by Park Place Realty Company.It is contended that the restrictions in question were imposed on defendant's lot by means of that plat and dedication.In order to establish that he was entitled to enforce the restrictions involved, it was therefore necessary for plaintiff to prove that he held his land in the addition in privity with and...