Collum v. Neuhoff, 18246

• Decision Date: 17 January 1974
• Docket Number: No. 18246,18246
• Citation: 507 S.W.2d 920
• Parties: W. Harold COLLUM et ux., Appellants, v. Henry NEUHOFF, Jr., Appellee.
• Court: Texas Court of Appeals

Page 920

507 S.W.2d 920

W. Harold COLLUM et ux., Appellants, v. Henry NEUHOFF, Jr., Appellee.

No. 18246.

Court of Civil Appeals of Texas Dallas.

Jan. 17, 1974.

Rehearing Denied March 14, 1974.

D. Ronald Reneker, Geary, Brice, Barron & Stahl, Dallas, for appellants.

Ron Edmondson, Lyne, Klein, French & Womble, Dallas, for appellee.

BATEMAN, Justice.

This is an injunction suit involving building restrictions in a residential area in Dallas. The trial court, sitting without a jury, concluded that appellants W. Harold Collum and wife had violated restrictive covenants affecting their home property and granted to appellee Henry Neuhoff, Jr. the permanent injunction he sought restraining appellants from completing a swimming pool and fence and requiring them to remove the swimming pool and fence from the portion of their property which is which 25 feet of the rear boundary line of their tract. We affirm.

The parties' residences are adjacent to each other, facing north on Wenonah Drive in the First Installment of Greenway Parks Addition, herein referred to as the Addition. A plat showing the layout of the Addition will be found in our opinion in City of Dallas v. Clark, 306 S.W.2d 742, 747 (Tex.Civ.App.--Dallas 1957), rev'd, 159 Tex. 46, 312 S.W.2d 235 (1958), and will therefore not be reproduced here. Both properties are in Block 4; appellee's property is Lot 3 and that of appellants is Lot 4 and the west one-half of Lot 5. The respective chains of title of appellants and appellee begin with the developers of the addition, J. P. Stephenson and F. N. Drane.

The restrictions in controversy here are found in the original deed by which the developers conveyed the Collum property to P. L. Allen. It is dated August 3, 1928 and contains this paragraph:

This conveyance is made and accepted upon each of the following stipulations, restrictions and conditions, which are hereby made Covenants running with the land and which shall apply to and be Binding upon the Purchaser and purchaser's heirs, devisees, executors, administrators or Assigns . . .. (Emphasis added).

The pertinent restrictions are that no dwelling house or fence shall be erected nearer than 25 feet to the 'park line' of said lots. It was also provided that these restrictions shall inure to the benefit of and be binding upon and enforceable by all original purchasers and subsequent grantees of any of said lots.

Appellee's primary ground for recovery was that the construction of the swimming pool and fence were in violation of 'negative covenants running with the land at law.' He then pled in the alternative that the restrictions in question were imposed as part of a general plan or scheme for the development of the Addition, and that subsequent purchasers of lots in the Addition, including appellants, purchased with knowledge thereof and are bound thereby. The trial court made findings of fact which fully support both independent grounds of recovery, but in their brief appellants attack only the findings with respect to the creation and implementation of a general plan or scheme of development.

Appellee's first counterpoint is as follows:

The trial court correctly granted judgment for appellee, and such judgment must be affirmed, because same is based on independent grounds of recovery which are fully supported by findings neither attacked nor assigned as error by appellants.

We sustain this counterpoint. The findings referred to therein are that the developers of the Addition conveyed the tract now owned by appellants to their predecessor in title by warranty deed dated August 3, 1928, which contains the restrictions here involved; that the said restrictions related to, touched, and concerned both the land granted therein and the land then retained by the grantors, including the adjacent Lot No. 3, now owned by Neuhoff; that the parties to the deed to appellants' predecessor in title intended that the restrictions contained therein be covenants running with the land and binding upon, and enforceable by, their respective subsequent grantees and assigns; that title to both properties passed to the parties by unbroken chains of record title from the said developers of the Addition; that both tracts are bounded on the south by an attractive private park and the south boundary line of appellants' tract is also the 'park line' as that term is used in the original deed to their predecessor in title, which park is dedicated to the use and enjoyment of all residents in the block, including appellee Neuhoff.

There being no attack on favorable findings of the trial court on appellee's primary ground of recovery, the points of error relating to his alternatively pleaded ground of recovery become irrelevant. Lane v. Davidson, 31 S.W.2d 1094, 1095 (Tex.Civ.App.--Austin 1930, no writ).

In their Points of Error No. 1--6 and 14 appellants urge us to reverse the judgment on grounds that appellee failed to carry his burden of proving the creation and implementation of a general plan or common scheme of development of the Addition and that the restrictions sought to be enforced are part of that plan. They argue that appellee was under that burden even though the restrictions be covenants running with the land at law. Thus the issue is sharply drawn and squarely presented, as to whether such a plan or scheme is necessary to establish a covenant running with the land at law.

The Texas authorities have long recognized the distinction between 'real' and 'personal' covenants. Those in the first category are said to run with the land At law, while a 'personal' covenant is often referred to as an equitable 'reservation' or 'servitude' which may be binding upon successors in interest even though the traditional Legal test of Spencer's case, 77 Eng.Rep. 72 (K.B.1583), are not met. See Montgomery v. Creager, 22 S.W.2d 463 (Tex.Civ.App.--Eastland 1929, no writ); Missouri, K. & T. Ry. v. State, 275 S.W. 673, 677--679 (Tex.Civ.App.--Austin 1925, writ ref'd), cert. granted, 271 U.S. 653, 46 S.Ct. 483, 70 L.Ed. 1134 (1926), but vacated, 275 U.S. 494, 48 S.Ct. 82, 72 L.Ed. 391 (1927); and Anderson v. Rowland, 18 Tex.Civ.App. 460, 44 S.W. 911 (Austin 1898, no writ).

These distinctions are treated extensively, if not exhaustively, in Williams, Restrictions on the Use of Land: Covenants Running with the Land at Law, 27 Tex.L.Rev. 419 (1949). As the author says, there are 'two separate and distinct doctrines of covenants, with somewhat different theories, requirements of creation, and means of enforcement and termination.' Id. at 420. The court, in Montgomery v. Creager, 22 S.W.2d, at 466, said:

It is true that equity recognizes a kind of covenants which do not run with land, but are nevertheless binding upon subsequent owners of property who acquire same with notice.

The key to enforceability of equitable covenants against subsequent owners is the fact that they took with notice of the covenant or servitude. Williams, Supra, at 438. Some of the Texas cases, decided subsequently to Professor Williams' said article and other related writings, ¹ which have generally recognized these distinctions are listed in the margin. ²

Appellee introduced evidence to prove his case, and received favorable judgment, on both theories. The establishment of a general plan or common scheme of development would be relevant only to the equitable servitude theory. Moreover, such a plan or scheme is only one of several circumstances showing the intention that successors in interest are to be bound. Hooper v. Lottman, 171 S.W. 270, 272 (Tex.Civ.App.--El Paso 1914, no writ). We hold that a general plan or common scheme of development is not essential to establish a covenant running with the land at law.

Appellants and their grantor are charged with notice of the restrictions on the use of their land. Smith v. Bowers, 463 S.W.2d 222, 224 (Tex.Civ.App.--Waco 1970, no writ). In fact, appellants' own deed recites that it is accepted subject to any and all restrictions of record affecting the property. Their grantor could not convey to appellants a greater or better title than he owned. Brite v. Gray, 377 S.W.2d 223 (Tex.Civ.App.--Beaumont 1964, no writ). These restrictions were real covenants running with the land, and the lot owned by appellee and his predecessors in title was intended to be benefitted thereby. That this was a sound and proper basis for the judgment, as found by the trial court, is not challenged by appellants. Therefore, the judgment must be affirmed. Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77, 84 (1954); Magee v. Cavins, 197 S.W. 1015 (Tex.Civ.App.--Amarillo 1917, no writ).

In their Points of Error Nos. 7, 8 and 11 appellants contend that it was error for the trial court to conclude that the swimming pool constitutes a violation of the restrictions and to order removal of the pool and the fence. They argue that swimming pools are not prohibited by the restrictions and that their 'rights' to maintain a pool on their property and to comply with a valid city ordinance requiring the fence around it are superior to and take precedence over appellee's rights under the setback restriction with respect to the fence.

We do not agree with this argument. The judgment does not prohibit the building of a swimming pool and fence on appellants' property; it does not forbid compliance by them with city ordinances relating thereto. Their right to do both is undisputed. They could not build the pool without surrounding it with a fence, under the applicable city ordinance, and it was the fence Within 25 feet of the park line which was forbidden by the restrictive covenant and the judgment. Appellants' Points of Error Nos. 7, 8 and 11 are overruled.

By their Points of Error Nos. 9 and 10 appellants complain of the trial court's failure to make certain additional conclusions of law. The court made all necessary findings of fact and conclusions correctly disposing of all ultimate issues raised by...