Cowling v. Colligan
| Citation | 312 S.W.2d 943,158 Tex. 458 |
| Decision Date | 30 April 1958 |
| Docket Number | No. A-6650,A-6650 |
| Parties | R. E. COWLING et al., Petitioner, v. Mrs. R. M. COLLIGAN, Respondent. |
| Court | Supreme Court of Texas |
Kelley & Ryan, Houston, for petitioner.
Stovall, O'Bryant & Stovall, Houston, for respondent.
This class suit was brought by R. E. Cowling and some seventeen other owners of lots in Post Oak Gardens Subdivision, an addition to the City of Houston, against Mrs. R. M. Colligan as owner and J. Terry Falkenbury as tenant or lessee of Tract No. 2 in the subdivision. The purpose of the suit was to obtain a declaratory judgment that certain restrictive covenants, and particularly a covenant restricting use of the lots in the subdivision 'for residence purposes only' were still valid, binding and enforceable restrictions on the use of all lots or tracts in the subdivision and to enjoin the defendants from using Tract No. 2 for business or commercial purposes. Falkenbury died before trial and his interest, if any, went out of the case.
The case was tried without a jury. Judgment was entered declaring the restrictive covenants contained in a certain instrument of record, including the covenant limiting the use of the lots for residence purposes only, to be 'valid, subsisting and enforceable restrictive covenants' which had 'not been waived, breached or abandoned to such an extent that they are no longer enforceable.' However, the court recited in its judgment that there had been such a change of conditions and of uses of lands in the vicinity of Tract No. 2 as to make it unjust and 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 solely on the transcript containing the findings and conclusions. No statement of facts was filed in the Court of Civil Appeals.
Other restrictive covenants are involved in the declaratory judgment but issue is joined by the parties on the covenant restricting the use of Tract No. 2 for residence purposes only.
There is no map or plat of the Post Oak Gardens subdivision in the record before us and we have no descriptive information with respect to the subdivision other than that which is found in the findings of fact filed by the trial court.
The findings of fact pertinent to the issue before us establish that the subdivision contains 49 tracts or lots ranging in size from 4 to 7.81 acres; that a church is located on the east three acres of Tract No. 1, to the west of Tract No. 2, and immediately across Bering Drive; that churches have been built upon two other tracts in the subdivision, and several other tracts have been sold to church bodies who contemplate the erection of church buildings; that one-half of the remaining building sites on the subdivision have residences erected upon them; that Tract No. 2, owned by the defendant, contains 5 acres, is bounded on the south by Westheimer Road and on the west by Bering Drive, has no improvements upon it except for one small frame building which is easily removable, and has never been devoted to any business or commercial use except for the storage of pipe and related items upon it; that the property adjoining Tract No. 2 on the east also fronts on Westheimer Road, is outside of the subdivision, is unrestricted, and is devoted to business and commercial uses; that the property abutting Westheimer Road on the south is outside the subdivision, is unrestricted, and is devoted to business and commercial uses; that Westheimer Road was a quiet country road at the time the subdivision was platted and the restrictions laid, but is now a heavily-traveled main thoroughfare; that the reasonable market value of Tract No. 2, restricted, is $10,000 per acre, whereas, if unrestricted, it is from $35,000 to $43,000 per acre. What may be said to be an 'ultimate' fact finding of the trial court is as follows: 'Tract No. 2, by reason of all of said matters, is no longer suitable for exclusively residential purposes.'
The trial court concluded that the restrictions laid by the instrument of record are 'valid, subsisting and enforceable restrictive covenants, and the same have not been waived, breached and abandoned to such an extent that the same are no longer enforceable in accordance with their terms.' The trial court further concluded, however, that 'it is no longer just and equitable to enforce said restrictive covenants against Tract No. 2 and to prevent the use of it for business and commercial purposes.'
The plaintiffs contended in the Court of Civil Appeals, and contend here, that, as a matter of law, the facts found by the trial court do not support its second conclusion and that the court erred in removing Tract No. 2 from the effect of the restrictive covenant. We agree.
There are certain rules of law by which a court of equity must be guided in determining whether to enforce a residential-only restriction. It may refuse to enforce it because of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it. 5 Restatement of the Law of Property § 561; 2 American Law of Property § 9.38; 14 Am.Jur. 644-646, Covenants, Conditions and Restrictions §§ 295-298; 12 Tex.Jur. 172-174, Covenants and Conditions § 108. It may also refuse to enforce it because there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant. 5 Restatement of the Law of Property § 564; 2 American Law of Property § 9.39; 14 Am. Jur. 648, § 305.
As heretofore indicated, the trial court found that the restrictions in Post Oak Gardens had not been waived or abandoned. Whether that conclusion be treated as an ultimate finding of fact or as a conclusion of law, the only contrary evidentiary fact found by the trial court is the erection and existence of churches in the subdivision. In the absence of a statement of facts we must presume that the other evidence heard supports the finding or conclusion.
The authorities are uniform in declaring that the erection of a church violates a covenant restricting the use of property for residential purposes. 14 Am.Jur., Pocket Part 97, Covenants, Conditions and Restrictions, § 225; 13 A.L.R.2d 1239; 26 C.J.S. Deeds § 164(3), p. 1117; Cannon v. Ferguson, Tex.Civ.App., 190 S.W.2d 831, no writ history; Chandler v. Darwin, Tex.Civ.App., 281 S.W.2d 363, no writ history; Terrell Hill Baptist Church v. Pawel, Tex.Civ.App., 286 S.W.2d 204, no writ history. It has been held, however, that the violation is so trivial in character that the failure of other property owners in the restricted area to complain does not operate as a waiver of their right to enforce the covenant against business or commercial development, or as an abandonment of the covenant. Mechling v. Dawson, 234 Ky. 318, 28 S.W.2d 18, 19. We approve that holding.
A court may not refuse to enforce a residential-only restriction against a particular lot on the sole ground that a change of conditions has rendered the lot unsuitable for residential purposes and it would therefore be inequitable to enforce it. The equities favoring the particular owner is only one facet of the judicial inquiry. Those equities must be weighed against the equities favoring the lot owners who, having acquired their property on the strength of the restriction, wish to preserve the residential character of the area. The judgment must arise out of a balancing of equities or of relative hardships. 5 Restatement of the Law of property § 563. In paragraph c of § 563 it is said:
The trial court made no finding that the removal of Tract No. 2 from the restriction would not prove harmful to the plaintiffs who...
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