Calvary Temple v. Taylor

• Decision Date: 22 March 1956
• Docket Number: No. 12918,12918
• Citation: 288 S.W.2d 868
• Court: Texas Court of Appeals
• Parties: CALVARY TEMPLE, Appellant, v. Blanche J. TAYLOR et al., Appellees.

Page 868

288 S.W.2d 868

CALVARY TEMPLE, Appellant, v. Blanche J. TAYLOR et al., Appellees.

No. 12918.

Court of Civil Appeals of Texas, Galveston.

March 22, 1956.

Jones, Donoghue & Butler, and William B. Butler, Houston, for appellant.

Fred W. Moore and Richard O. Werlein, Houston, for appellees.

HAMBLEN, Chief Justice.

This appeal is from an order of the District Court of Harris County refusing appellant's motion to dissolve a temporary injunction theretofore issued by that court. The facts essential to its determination may be stated as follows:

Appellant and appellees are owners of property in Westmoreland Addition to the City of Houston. The land constituting that Addition was at one time owned in its entitety by South End Land Company. That Company caused the land to be subdivided into lots and blocks, with appropriate streets characteristic of an urban subdivision. All of the lots in such subdivision have now been sold by South End Land Company and the Company is dissolved. Each conveyance by South End Land Company contained restrictive covenants as to the use which might be made of the property conveyed, among which was one providing, 'No building erected or placed upon the land hereby conveyed, shall be used or occupied for any purpose except that of residence; nor shall daid, or any portion thereof, be used or occupied for trade or business.' This covenant was common to every conveyance in Westmoreland Addition and was expressly stated to be a covenant running with the land. Each conveyance by South End Land Company also contained words as follows: '* * * It shall be lawful for any person owning land fronting on _____ Street, as aforesaid, which is subject tot the same restrictions or conditions in respect to which default is made, to institute and prosecute appropriate proceedings at law or in equity for the wrong done or attempted.' In the space shown as an omission in the foregoing quotation, there was in each conveyance inserted the name of the street upon which the particular lot or lots therein conveyed fronted according to the recorded map or plat of the subdivision. This provision was likewise common to every conveyance in Westmoreland Addition, the only variation being in the name of the street designated therein which was in each instance made to conform to the street upon which the property conveyed fronted as shown by the plat or map.

Appellant became the owner by purchase of Lots 16 and 17, Block 9, of Westmoreland Addition, which was shown on the plat of that subdivision to front upon and does in fact front upon what was then known as Ross Street and is now known as West Alabama Street in the City of Houston. In appellant's chain of title is a deed from South End Land Company in which is contained the covenant hereinabove set forth restricting the property to residential use and the provision, '* * * It shall be lawful for any person owning land fronting on Ross Street, as aforesaid, which is subject to the same restrictions or conditions in respect to which default is made to institute and prosecute appropriate proceedings at law or in equity for the wrong done or attempted.'

After its purchase appellant, or the unincorporated association which it succeeds, began the erection on its property of a building designed and intended to be used as a church. Certain individuals as parties plaintiff instituted a suit in the District Court of Harris County seeking a temporary and permanent injunction against appellant and the association which it succeeds. All of the parties plaintiff were individuals who owned property in Westmoreland Addition subject to the same restrictions or conditions as those to which appellant's property was subject. Some of such parties plaintiff owned property on Ross Street (now West Alabama Street). The remaining parties plaintiff owned property fronting on streets other than Ross Street.

After a hearing, the trial court granted a temporary injunction, the effect of which was to halt the construction of the church by appellant and to maintain the status quo pending a final hearing. Appellant gave notice of appeal, but before perfecting same certain of the original parties plaintiff moved the trial court to dismiss them as parties to the suit, which motion was granted. The parties so dismissed constitute all of the original plaintiffs whose property fronts on Ross Street. Only those individuals whose property fronts on streets other than Ross Street remain as parties plaintiff. Appellant thereupon filed a motion to dissolve the temporary injunction. This appeal is from the order overruling that motion.

Appellant presents one point of error, the basis of which is that at the time of the hearing on the motion to dissolve the injunction none of the parties plaintiff had the right to enforce the restrictive covenants upon which the injunctive relief was based and therefore the court erred as a matter of law in overruling the motion. Before discussing appellant's point, we think it appropriate to define the issue as we see it.

As a general rule, a suit for the equitable enforcement of a restrictive covenant is maintainable only by one for whose benefit the covenant was intended. In many instances the instrument creating the restrictive covenant expressly indentifies those persons for whose benefit the covenant was intended. In the present case, the instrument under which appellant holds title expressly confers a right of action to enforce the restrictive covenants upon any person owning property fronting on Ross Street. That the covenants were intended for the benefit of such persons is clear. None of the appellees before this Court, however, occupy that status. They alleged their right to the relief granted them upon the proposition that Westmoreland Addition was developed under a general plan or scheme under which it was intended that the restrictions should inure to the benefit of all lot owners. Their trial pleadings are such as to bring them within the rationale of a long line of decisions by the courts of this State. Hooper v. Lottman, Tex.Civ.App., 171 S.W. 270; Curlee v. Walker, 112 Tex. 40, 244 S.W. 497; Green v. Gerner, Tex.Com.App., 289 S.W. 999; Green v. Gerner, Tex.Civ.App., 27 S.W.2d 828; Couch v. Southern Methodist University, Tex.Civ.App., 290 S.W. 256.

The entire basis of appellant's assertion of error on the part of the trial court rests upon the proposition that the grantor in the deeds under which these litigants hold title, having expressly identified those persons for whose benefit these covenants were intended, has thereby conclusively negatived any intention that they inure to the benefit of other lot owners not so identified. We have concluded that upon the state of the record before this Court, appellant's point of error is not well taken and must be overruled.

The appellees before this Court rely for affirmance primarily upon the case of Abernathy v. Adoue, Tex.Civ.App., 49 S.W.2d 476, 478, decided in 1932 by the Beaumont Court of Civil Appeals, which involved the identical restrictive covenants now under consideration and which appellees say is binding on this Court both as a rule of property and under the doctrine of stare decisis. That suit was originally instituted by and against parties all of whom owned property fronting upon a common street in Westmoreland Addition. During its pendency, other parties who owned property fronting on other streets, such as do appellees now, intervened. The appellant in that case as one of his points of error complained of the action of the trial court in overruling his exceptions ot such interventions. The Beaumont Court of Civil Appeals held that the appellant had not properly perfected his record to support his complaint. After so ruling, however, the court stated as follows:

'But the filing of these pleas was justified by the allegations of the interveners that the general plan or scheme of South End Land Company in platting and dedicating and selling Westimoreland addition was to create a highly restricted residential district and that the removal of the restrictions from appellant's lots would injure their property. While the interveners were not given a specific right, by the deeds under which they held, to contest appellant's petition, yet, under general principles of equity, they had the right to do so by showing that the cancellation of these restrictions would violate the general plan or scheme under which they purchased their property, resulting in damage to their property.'

The language quoted admittedly lends strong support to the position of the appellees before this Court, however such quoted language was entirely unnecessary to the decision of the litigation before the court and amounts only to dicta. We do not understand that dicta is under any conditions binding upon any court either as a rule of property or under the doctrine of stare decisis. Furthermore, being the decision of a court of civil appeals, the doctrine of stare decisis is in no event applicable. In its application to this present litigation, we consider the quoted statement from the court's opinion to have persuasive value only.

We...