Evans v. Pollock
| Decision Date | 13 June 1990 |
| Docket Number | No. C-8949,C-8949 |
| Citation | 796 S.W.2d 465 |
| Parties | Charles EVANS, et al., Petitioners, v. Thomas R. POLLOCK, et al., Respondents. |
| Court | Texas Supreme Court |
This is a restrictive covenant case involving the implied reciprocal negative easement doctrine. The trial court found that only the lakefront lots were impressed with restrictive covenants as part of the general plan of development, but the hilltop block was not. It implied the negative reciprocal easement on the developers' retained lakefront lots only, enjoining their use contrary to the restrictive covenants burdening the other lakefront lots. The court of appeals reversed and rendered, holding that a reciprocal negative easement can be imposed only when the general plan of development includes the entire subdivision tract and attaches to all the property retained by the common developer-owner. 793 S.W.2d 14 (Tex.App.1989). We hold that there need only be a clearly-defined restricted district to which the restrictions apply as part of the plan of development, some lots of which are either retained by the owner-developer or sold to a purchaser with actual or constructive notice of the restrictions, for the doctrine to apply as to those lots. We reverse the judgment of the court of appeals and remand the cause to that court for consideration of factual sufficiency points.
Because it sets the legal context for the factual disputes, we first briefly discuss the legal theory of this controversy. The doctrine of implied reciprocal negative easements applies when an owner of real property subdivides it into lots and sells a substantial number of those lots with restrictive covenants designed to further the owner's general plan or scheme of development. The central issue is usually the existence of a general plan of development. The lots retained by the owner, or lots sold by the owner from the development without express restrictions to a grantee with notice of the restrictions in the other deeds, are burdened with what is variously called an implied reciprocal negative easement, or an implied equitable servitude, or negative implied restrictive covenant, that they may not be used in violation of the restrictive covenants burdening the lots sold with the express restrictions. A reasonably accurate general statement of the doctrine has been given 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, 188, 129 S.E.2d 673, 679 (1963).
The implied reciprocal negative easement doctrine has long been recognized in many jurisdictions. Annot., 60 A.L.R. 1216 (1929); Annot., 144 A.L.R. 916 (1943). This court expressly approved the doctrine in Curlee v. Walker, 112 Tex. 40, 43-44, 244 S.W. 497, 498 (1922). Curlee was a standing case in which we expressly addressed whether the owner of a lot subject to a restrictive covenant had standing to assert the restrictive covenant in another landowner's deed; the case did not involve an implied reciprocal negative easement. Because the concept of a general plan of development is so frequently connected to the doctrine and standing questions, however, we wrote extensively on the implied reciprocal negative easement doctrine. The leading Texas case on implied reciprocal negative easements is Hooper v. Lottman, 171 S.W. 270 (Tex.Civ.App.--El Paso 1914, no writ), from which we quoted at length with approval in Curlee. We implicitly recognized the doctrine in MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969). Numerous intermediate appellate decisions have applied it, as we will examine below.
In September of 1947 Stanley and Sarah Agnes Hornsby (the Hornsbys), together with Charles and Bernice McCormick (McCormicks) platted a subdivision around Lake Travis from their commonly owned property in Travis County. They named the subdivision "Beby's Ranch Subdivision No. 1." The plat itself did not state any restrictions on land-use. The plat divided the property into seven blocks designated alphabetically "A" through "G". The plat did not further subdivide blocks C, D, E and F, but blocks A, B, and G were divided into thirty-one lots. The subdivision is on a peninsula-like tract that extends into the lake, so that much of it has lake frontage. All of the platted lots are lakefront lots. Block G is located on the point of the peninsula. Block F is located on a hill and is surrounded by lake-front lots. This is the schematic diagram of the subdivision:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Block F is also referred to as the "hilltop."
In October of 1947, before selling any lots other than two lots sold prior to the platting discussed below, the Hornsbys and McCormicks partitioned Beby's No. 1 between themselves. By partition deed the McCormicks received title to all of Blocks A, B, and C, and the Hornsbys got Blocks D, E, F, and G. Over the next several years, the Hornsbys and the McCormicks conveyed twenty-nine parcels of land from Beby's No. 1 to third parties or one another. Stanley Hornsby, a real estate attorney, and his law partner Louise Kirk, handled most of the legal work relating to the sale of lots, and the McCormicks made most of the sales. A real estate agent advertised some of the lakefront lots for sale in 1955, describing them as in "a restricted subdivision." Each deed from the Hornsbys and the McCormicks contained substantially the same restrictive covenants, including, among others, covenants: (1) prohibiting business or commercial use of the land conveyed; (2) restricting the land to residential use with only one dwelling per lot; 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. In 1946 the McCormicks had conveyed two of the lakefront lots unburdened by any deed restrictions. When the original grantee conveyed the two lots to third parties in 1954, he had Hornsby draft the deeds. The deeds contained the restrictions that the property could not be used for any business or commercial purposes and that the restrictions could be altered by the " 3/4 vote" along the 715 contour. Thus all lots conveyed ended up with substantially similar restrictions. All were lakefront lots, and voting rights under the restrictive covenants apparently were limited to lots with lake frontage.
The Hornsbys retained ownership of lots 4 through 8 in Block G and all of Block F. Both Hornsbys are now deceased, and the retained property passed to their devisees. The present dispute arose when the Hornsby devisees contracted to sell Thomas R. Pollock all of Block F and lots 4 and 5 in Block G for the purpose of building a marina, private club, and condominium development. Charles Evans and other owners whose deeds contained the restrictive covenants sued for equitable relief under the implied reciprocal negative easement doctrine. They sought declaration that the restrictive covenants enumerated above expressly imposed by deed upon their property were implied upon the Hornsby retained property. They further sought an injunction to prevent the Hornsby devisees from conveying the property without such deed restrictions.
Trial was to the court. The testimony sharply conflicted as to Stanley Hornsby's oral representations of his intentions for the retained property. The evidence ranged from testimony that could reasonably be interpreted to mean that Hornsby intended all the subdivision property to be restricted, to testimony lending itself to the conclusion that Hornsby intended the retained property to be unrestricted in all respects. The trial court filed numerous findings of fact, including these:
17. The restrictions at issue were part of a general plan for development of the subdivision by the original subdividers, Stanley and Sarah Agnes Hornsby and Charles and Bernice McCormick.
18. This general plan of development involved protection/preservation of the strictly residential character of the subdivision, prohibition of business-commercial activities within the subdivision, and provision for change or modification of the restrictions by vote of the owners of parcels within the subdivision.
19. The general plan of development of the original subdividers (Stanley and Sarah Agnes Hornsby, Charles and Bernice McCormick) was that all lakefront property within the subdivision be burdened with the same restrictions.
20. Stanley Hornsby and his real estate broker represented to various purchasers that all lakefront parcels (i.e. all parcels except Block F) were restricted to residential use only and that business-commercial use thereof was prohibited.
* * * * * *
22. Non-enforcement of the general plan of development as to the lakefront lots will decrease the value of the lots purchased and presently owned by Plaintiffs Arnold and Kay Sousares.
The trial court rendered judgment declaring that the restrictions at issue...
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