Cowling v. Colligan, 3506
| Decision Date | 21 November 1957 |
| Docket Number | No. 3506,3506 |
| Citation | 307 S.W.2d 841 |
| Parties | R. E. COWLING et al., Appellants, v. Mrs. R. M. COLLIGAN, Appellee. |
| Court | Texas Court of Appeals |
Kelley & Ryan, Houston, for appellants.
Stovall, O'Bryant & Stovall, Houston, for appellee.
Appellants brought this suit as a class action under the Uniform Declaratory Judgment Act to test the validity of certain restrictive covenants relating to Post Oak Gardens, a subdivision in Harris County, Texas. The restrictions in controversy were designed primarily to prevent the use of the property in the addition for business purposes. Appellants sought by their suit to enjoin the projected business use of one of the lots in the subdivision by appellee, the owner of the lot, and to secure a judicial determination that the original restrictions placed against the use of the subdivision were still valid, binding and effective. The case was tried without the aid of a jury and resulted in a declaratory judgment holding the original restrictions to be generally in full force and effect but by reason of changed conditions the court further found that it would be inequitable and unjust to hold the lot owned by appellee to be subject to the continued restriction against its use for business purposes. The effect of the judgment was to remove the lot from the restriction against its use for business purposes and to deny the injunctive relief sought by appellants.
The appeal is predicated upon two points of error as follows:
The record before us contains extensive Findings of Fact and Conclusions of Law by the trial judge but it does not contain any statement of facts or a transcript of any of the evidence which was introduced upon the trial. From the Findings of Fact it appears, among other things, that the original subdivision was made in the year 1939; that Post Oak Gardens as originally subdivided consists of 49 tracts of ground; Tracts Nos. 1 and 2 consist of 5 acres each, Tract No. 2o consists of 6.43 acres, Tract No. 24 consists of 6.16 acres, Tract No. 37 consists of 4.56 acres, Tract No. 38 consists of 4.48 acres, Tract No. 47 consists of 6.80 acres, and Tract No. 49 consists of 7.81 acres; all of the remaining tracts in the subdivision consist of 4 acres each.
The trial court further found that
The court concluded, among other things, that the restrictions governing Post Oak Gardens are valid, subsisting and enforceable, restrictive covenants, but because of the change of conditions in the area immediately adjacent to Tract No. 2, the court was of the opinion that it was no longer just or equitable to enforce the restrictive covenants against Tract No. 2 so as...
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Mea v. Mea
...not required, even upon timely request, to make findings on issues of fact that are only evidentiary and incidental in nature. Cowling v. Colligan, 307 S.W.2d 841 (Tex.Civ.App., Waco, 1957, reformed and affirmed by the Supreme Court, 158 Tex. 458, 312 S.W.2d 943; Wade v. Taylor, 228 S.W.2d ......
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Healy v. Wick Bldg. Systems, Inc.
...requests an evidentiary hearing. See Dallas Heating Co. v. Pardee, 561 S.W.2d 16 (Tex.Civ.App. Dallas 1977); Cowling v. Colligan, 307 S.W.2d 841, 843 (Tex.Civ.App. Austin 1957), reformed 158 Tex. 458, 312 S.W.2d 943 Motion overruled. 1 All questions were by Wick's counsel unless otherwise n......
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Cowling v. Colligan
...inequitable to enforce the covenants against that tract and ordered it removed from their effect. The Court of Civil Appeals affirmed. 307 S.W.2d 841. Pursuant to request of plaintiffs the trial judge filed findings of fact and conclusions of law. The appeal of the plaintiffs was predicated......
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Colligan v. Smith
...of Civil Appeals affirmed the trial court on November 21, 1957, and denied the motion for rehearing on December 12, 1957 (Cowling v. Colligan, 307 S.W.2d 841). On April 30, 1958, the Texas Supreme Court reversed the Court of Civil Appeals and the District Court and denied the motion for reh......