Burns v. Wood
| Decision Date | 24 January 1973 |
| Docket Number | No. B--3537,B--3537 |
| Parties | Bobby M. BURNS, Petitioner, v. Edgar A. WOOD, Respondent. |
| Court | Texas Supreme Court |
Protho & Sellers, Lee Sellers, Wichita Falls, for petitioner.
Banner & McIntosh, Fillmore, Lambert, Farabee and Purtle, Wichita Falls, DeLange, Hudspeth, Pitman & Katz, Eugene J. Pitman, Houston, for respondent.
The opinion delivered in this cause under date of January 24, 1973, is withdrawn, and the judgment entered on this date is set aside. The following opinion is substituted therefor.
This is a suit by Bobby M. Burns, petitioner here and plaintiff below, to enforce by the restraint of injunction claimed restrictive covenants, later quoted, against the erection of multi-unit apartment houses on lots owned by Edgar A. Wood, respondent here and defendant below. The right to the relief sought was essentially predicated on a recorded plat and dedication purporting to establish the Park Place Subdivision, as an addition to the City of Wichita Falls, Texas; and on the alleged implementation of the general plan thereby inaugurated. In a trial to a jury, it was found that the lots of Burns and Wood were included in the Park Place Subdivision; that Burns and prior owners had waived the right to enforce the apartment restriction; that the restriction had been abandoned and that Burns unreasonably delayed his protest to the apartment project to Wood's injury. After overruling Burns' motion for judgment notwithstanding the verdict, a take nothing judgment was rendered against him by the trial court. This judgment was affirmed by the Court of Civil Appeals upon the holding that Barns did not prove a prima facie case entitling him to the relief sought. 482 S.W.2d 295. We affirm.
Burns established that in 1926 there was placed of record in Wichita County, Texas, a plat and dedication instrument pertaining to a district called Park Place Subdivision, and containing the restrictive covenants which Burns seeks to enforce against the lots held by Wood. The recorded instrument read in part as follows:
'It is hereby agreed that in making sales of property within the limits of said subdivision, such sales shall be made by reference to the attached map and each deed making such conveyance or any reconveyance by the Park Place Realty Company, its successors or its various assigns, shall contain or adequately refer to the following restrictions, which are covenants running with the title to said property, and each and every lot or tract in said subdivision is hereby impressed with such restrictions. Each purchaser in accepting title to said property or any portion of same is bound by said restrictions and agrees thereto by the act of accepting such title. No purchaser or any other one in any manner acquiring any interest in said property shall ever have the right to convey same free and clear of said restrictions.
'These restrictions are as follows, to-wit:
'No building other than a private dwelling house, apartment house or hotel, together with the suitable out-buildings appurtenant thereto, shall ever be erected on any of said lots or tracts in said subdivision except that churches, schools, store-buildings and filling stations or either may be erected upon the following tracts:
'Tract A--Lot 23, in Block 7; Lot 1 in Block 8; Lot One in Block 6; Block 28; Lot 7 in Block 19; Lot 1 in Block 20.
'Not more than one dwelling shall ever be erected on any lot or tract with the exception of the large tracts designated as follows:
'Tracts B, C, D, E, F, G, H, J, K, L, M, N, O, P, Q, R, S, T, U, V,
'. . . These restrictions are made for the mutual benefit of all persons acquiring property in said subdivision and for the purpose of inducing them to acquire such property and said restrictions are hereby made irrevocable and binding upon the said grantor its successors and assigns, in favor of the purchaser or purchasers, their heirs and assigns, and each purchaser is granted the corresponding right and benefit to compel the observance of such covenants, restrictions, conditions and easements herein enumerated.'
On its face the recorded instrument manifested a general plan for the development of Park Place Subdivision as a restricted residential area for the mutual benefit of future purchasers of lots. Each conveyance of a lot was to contain or carry adequate reference to the recorded restrictions; each lot was to be burdened with the restrictions for the benefit of the other lots; and each lot owner was to acquire the right to enforce the restrictions against the other lots. These are, indeed, the elements of a 'general scheme or plan.' In Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922), the subdivider placed of record a plat of an addition to the City of Wichita Falls. The restrictions upon uses of the lots were stipulated in all of the deeds. This Court said:
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...because Colonial, as sole owner of the restricted property, can modify or remove the use restrictions at will. See Burns v. Wood, 492 S.W.2d 940, 943-44 (Tex.1973); Hill v. Trigg, 286 S.W. 182, 184 (Tex.Comm'n App.1926, judgm't adopted). Hill and Burns simply acknowledge that an owner who h......