Evans v. Pollock

• Decision Date: 15 March 1989
• Docket Number: No. 3-86-068-CV,3-86-068-CV
• Citation: 793 S.W.2d 14
• Parties: Charles EVANS, et al., (Appellants/Cross-Appellees), v. Thomas R. POLLOCK, et al., (Appellees/Cross-Appellants).
• Court: Texas Court of Appeals

Page 14

793 S.W.2d 14

Charles EVANS, et al., (Appellants/Cross-Appellees), v. Thomas R. POLLOCK, et al., (Appellees/Cross-Appellants).

No. 3-86-068-CV.

Court of Appeals of Texas,

Austin.

March 15, 1989.

Rehearing Overruled June 21, 1989.

Ordered Published by Supreme Court

of Texas June 13, 1990.

Mark L. Perlmutter, Doggett, Jacks, Marston & Perlmutter, P.C., Jim Arnold, Jr., Arnold, Crook and Associates, Austin, for appellants/cross-appellees, Charles Evans, et al.

Elizabeth G. Bloch, Hilgers & Watkins, P.C., Austin, for appellants/cross-appellees, Joan Hornsby Johnson, et al.

Steve Selby, Scott, Douglass & Luton, Austin, for appellant/cross-appellee, Thomas R. Pollock.

Steve Selby, Scott, Douglass & Luton, Austin, for appellee/cross-appellant, Thomas R. Pollock.

Before SHANNON, C.J., and BRADY and ABOUSSIE, JJ.

ABOUSSIE, Justice.

Charles Evans and other persons who owned property within a subdivision brought this action for declaratory judgment and injunctive relief, requesting that the trial court declare that all property located within a subdivision is subject to restrictive limitations on its use and seeking to enjoin an owner from transferring his land in violation of the restrictions. Trial was to the court, which found that the restrictive covenants in issue applied only to a portion of the subdivision, not to the entire tract. All parties appeal. We will reverse the judgment.

Stanley and Sarah Agnes Hornsby owned real property fronting on Lake Travis together with Charles and Bernice McCormick. On or about September 11, 1947, the Hornsbys and the McCormicks established a subdivision, which included their commonly owned property, that they named "Beby's Ranch Subdivision No. 1." The plat did not contain any land-use restrictions or limit permissible use of the property in any way.

The plat of Beby's No. 1 designated seven blocks labelled "A" through "G." Blocks A, B, and G were divided into thirty-one lots. Those blocks designated C, D, E, and F were not further subdivided. The subdivision is on a peninsula-like tract that extends into the lake, so that much of it has lake frontage. Block G is situated on the point. Block F is situated on a hill surrounded by lake-front lots in the subdivision.

Before creating the subdivision, the McCormicks conveyed two lake-front lots they owned to Frank Holloway, one in April 1946 and the second in July 1947. The first lot was conveyed unburdened by any of the deed restrictions here in issue. The 1947 deed prohibited any business or commercial enterprise on the second lot. When Holloway conveyed these two lots to third parties in 1954, he provided by deed that the property could not be used for any business or commercial purpose and that the restrictions could be altered by the so-called " 3/4 vote" discussed below. Neither lot ever has been expressly restricted to residential use. The record does not reflect that Holloway had any connection with the subdivision, and no one suggests that any rules governing the subdivision control this property, but Holloway's lots were carved out of property which later was included in the subdivision and are situated between Block A and Block G.

In 1948, the McCormicks also created an adjacent subdivision containing eleven lots, solely owned by them, that they called "Beby's Ranch Subdivision No. 3." There were no land-use restrictions expressly attached to this subdivision.

By deed dated October 17, 1947, before selling any lots, the Hornsbys and the McCormicks partitioned Beby's No. 1 between them. The McCormicks acquired title to all of Blocks A, B, and C, and the Hornsbys acquired title to all of Blocks D, E, F, and G. The partition deed did not include any agreement or covenants restricting use of land within the subdivision, and no restrictions were ever filed of record.

Over the next several years, the Hornsbys and the McCormicks conveyed twenty-nine parcels of property within Beby's No. 1 to third parties or to one another. Hornsby, a real estate lawyer, and his law partner Louise Kirk, handled most of the legal work relating to the sale of lots, although the McCormicks made most of the sales. A real estate agent, Bill Grafton, advertised some of the property for sale in 1955. The McCormicks made thirteen conveyances before 1950 (including one to the Hornsbys), two in 1950, and seven between 1955 and 1957; a total of twenty-two over ten years. In 1958, they sold Block C. The McCormicks also transferred nine lots from 1948 to 1950, one in 1953, and the last in 1955, all out of Beby's No. 3.

On the same date as the partition deed, the Hornsbys conveyed a lot on the point to their daughter. In 1948, they transferred two lots, one to the McCormicks and one to Kirk. The Hornsbys made no further conveyances until selling a lot to the Arnolds in 1957. They executed three more deeds in 1957, one in 1958, and one in 1969; a total of nine over twenty-two years.

Each deed from the McCormicks and the Hornsbys contained the following similar terms: (1) prohibiting business or commercial use of the land conveyed, (2) restricting it to residential use with only one dwelling, and (3) providing that the restrictions could be changed by 3/4 of the property owners within the subdivision "voting according to front footage holdings on the 715 contour line" of the lake. These restrictions are those which are in issue. None of the deeds provided that similar restrictions govern all or any other part of the subdivision or that like covenants would be included in any deeds to subdivision property in the future.

Since the partition in 1947, the Hornsbys have retained ownership of lots 4 through 8 in Block G and all of Block F. It is this property which gave rise to this dispute. Both of the Hornsbys are now deceased; the action was brought against their devisees of the so-called "retained" property.

The dispute arose when the Hornsby devisees contracted with Thomas R. Pollock to sell him all of Block F and lots 4 and 5 in Block G for the purpose of building a marina, private club, and condominium development. Evans and several owners whose deeds limit the use of their property sought equitable relief, requesting the trial court to declare the subdivision restricted. The Evans appellants alleged that the restrictive covenants expressly imposed by deed upon their property were by implication impressed upon the entire subdivision, including all the land retained by the Hornsbys. They rely upon the doctrine of implied reciprocal negative easements.

The trial court declared that the covenants in issue bind all lake-front property in the subdivision, including the Hornsbys' five retained lots on the point, but they do not restrict Block F, the hilltop, which contains about nine and one-half acres but has no lake frontage. All parties appeal from the trial court's judgment. The Evans appellants challenge the trial court's exclusion of Block F from its ruling, and the Hornsby devisees and Pollock challenge the imposition of restrictions upon the lots in Block G and the granting of an injunction as to those lots.

As a general rule, parties are free to agree among themselves concerning restrictions on property that is the subject of a sale and to include these covenants in any deed of conveyance, so long as they comport with public policy and are not otherwise illegal. Curlee v. Walker, 112 Tex. 40, 244 S.W. 497, 498 (1922). Covenants in a deed generally are considered personal to the parties concerned, relate only to the property described therein, and may be enforced only between parties to the conveyance. Green v. Gerner, 289 S.W. 999 (Tex.1927). Restrictions imposed upon separate grantees of lots in a subdivision pursuant to a general plan of development may be enforceable by one grantee against another on the theory of mutual covenant and consideration, Painter v. MacDonald, 427 S.W.2d 127, 134 (Tex.Civ.App.1968), rev'd on other grounds, 441 S.W.2d 179 (Tex.1969), and upon the ground that mutual negative easements are thereby created to which all grantees are subject. Braswell v. Woods, 199 S.W.2d 253, 255 (Tex.Civ.App.1947, writ ref'd n.r.e.). In the same way, a grantee may be able to compel his grantor to adhere to the original development scheme by likewise restricting the property the grantor retains or conveys to others thereafter. Burgess v. Putnam, 464 S.W.2d 698 (Tex.Civ.App.1971, writ dism'd). This resulting limitation is commonly referred to as a reciprocal negative easement.

The doctrine of reciprocal negative easements has been stated generally as follows:

[W]here a common grantor develops a tract of land for sale in lots and pursues a course of conduct which indicates that he intends to inaugurate a general scheme or plan of development for the benefit of himself and the purchasers of the various lots, and by numerous conveyances inserts in the deeds substantially uniform restrictions, conditions and covenants against the use of the property, the grantees acquire by implication an equitable right, variously referred to as an implied reciprocal negative easement or an equitable servitude, to enforce similar restrictions against that part of the tract retained by the grantor or subsequently sold without the restrictions to a purchaser with actual or constructive notice of the restrictions and covenants (citations omitted).

Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673, 679 (1963). The resulting servitude is mutual; "it runs with the land sold by virtue of express fastening and abides with the land retained...." Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 497 (1925). The imposition of such easements is never retroactive and, therefore, cannot arise due to developing conditions, but instead must originate with the common owner while the property is in his hands. Id. Texas has also recognized the doctrine of implied reciprocal negative easements. Saccomanno v. Farb, 492 S.W.2d 709 (Tex.Civ.App.1973,...