Green Ave. Apartments v. Chambers
| Decision Date | 12 April 1951 |
| Docket Number | No. 4719,4719 |
| Citation | 239 S.W.2d 675 |
| Parties | GREEN AVENUE APARTMENTS, Inc., v. CHAMBERS et al. |
| Court | Texas Court of Appeals |
Stewart Burgess & Morris, Houston, for appellant.
A. A. McWharter, Fred White, Port Arthur, for appellees.
This appeal was taken from an order granting a temporary injunction restraining the erection of certain improvements on tract 22 in Laurel Place addition to the City of Port Arthur. Appellees are plaintiffs and the appellant is one of three defendants, two of whom, Mrs. Rosa Gaertner and her daughter Laura Gaertner, did not appeal, although injoined as was appellant.
Tract 22 is owned by defendant Green Avenue Apartments, and it was conveyed to said defendant by Bush, Thompson and Mrs. Westerhoff, to whom it had been conveyed by the defendants Gaertner. The plaintiffs own other lots in this addition, on which they reside, and at least some of them bought their property from the defendants Gaertner.
The suit is founded upon certain covenants which restrict the use of land in Laurel Place. Defendant Green Avenue Apartments plans to erect 21 multiple dwellings on tract 22, containing a large number of apartments, and said defendant intends to let them to members of the public. Plaintiffs contend that the restrictive covenants apply to tract 22, and that the use of tract 22 which defendant Green Avenue Apartments intends to make will violate these covenants. Plaintiffs prayed for relief by way of injunction, both temporary and permanent, and the prayer for a temporary injunction was granted after a hearing. Evidence adduced at this hearing shows the following matters: Laurel Place is a subdivision made by F. C. Gaertner and his wife, the defendant Rosa Gaertner, of land which they owned at the time. Mr. Gaertner died subsequently, prior to the exchange of lands hereinafter mentioned, which occurred in 1940 or 1941.
The original plat and the instrument dedicating public ways and declaring restrictive covenants were made by Mr. and Mrs. Gaertner. These documents were dated May 31, 1939, were filed for record in the office of the County Clerk on June 17, 1939 and were recorded in the Deed Records of the county on June 23, 1939. They were also recorded in the map records.
The instrument containing the dedication of ways and declaring the restrictive covenants reads as follows:
'Know all men by these presents: That we, F. C. Gaertner and Rosa Gaertner, husband and wife, of the County of Jefferson, State of Texas, being the owners of that tract of land described in the surveyor's certificate, dated April 27, 1939, which land is the same land conveyed to said F. C. Gaertner by deed recorded in Vol. 124, pg. 543, of the Deed Records of Jefferson County, Texas, and by Receiver's Deed, recorded in Vol. 180, pg. 275, of the Deed Records of Jefferson County, Texas, being in and a aprt of Lot Number Seven (7), in Block Number Four (4), Range 'G' of the Port Arthur Land Company's survey of lands in Jefferson County, Texas, (excepting a tract 295 feet by 310 feet heretofore sold to H. Hosen) to which maps and deeds and the records thereof reference is now hereby made for metes and bounds description of the tract of land now owned by the undersigned, have caused the same to be surveyed, subdivided, platted and laid out into lots, streets and avenues and public highways as shown upon the accompanying map for the purpose of establishing a Subdivision which shall be known as Laurel Place Addition to Port Arthur, Jefferson County, Texas.
'And, We, the said owners, do hereby Give, Grant and Dedicate all those strips of land, as shown upon the accompanying map of said Laurel Place as streets, avenues and public roads to the public to be so used as streets, avenues, roads and highways forever.
'For the purpose of establishing and maintaining a general plan and building scheme uniform over the entire Addition herein created for the protection and benefit of all owners of any lot or lots in said Addition hereafter, I do hereby charge each and all of the lots in said Addition, as shown upon said map, and do fix and establish the following as conditions and restrictions upon the use, occupancy, and sale of any such lot or lots:
'First: Any lot or lots in said Addition, when sold, now and hereafter, shall be used for residential purposes only, and only one dwelling house with the necessary outhouses therefor shall be constructed and maintained upon any such lot of land.
'Second: Except as otherwise noted below, each and every dwelling house to be erected upon any lot or lots in said Addition must front in the direction of the site, and the main building of such improvements shall be situated at least Twenty-five (25) feet from the said front street or property line, and no resident or out-buildings shall be built closer to either side of an adjoining lot property line than Five (5) feet.
'Fourth: The rear five (5) feet of all lots, being a strip of land five (5) feet in width across the rear end of each lot, shall always bear and be charged with a utility easement for the purpose of placing and maintaining thereon and thereunder any and all improvements or apparatus, pipes, poles, wires, cables, conduits and other instrumentalities necessary or needful in and about the transmitting, conducting and distributing of electric current, telephone, and other public utility service, and to that end the agents, servants and employees of any person, firm or corporation, giving public utility service, shall have the right of ingress and egress, in, over and across said rear five (5) foot strip and no improvement or hindrance will be placed upon said rear five (5) foot strip that will materially interfere with the operation of such public utility.
'Fifth: Neither said land nor improvements or any portion thereof shall be sold, leased, or resold at any time to any person or persons not belonging to the white or Caucasian race; provided, that this covenant shall not prevent occupancy by domestic servants of a different race employed by the owner or tenant.
'Sixth: No retail or wholesale shop or store shall be erected or any business or industry, or any obnoxious or offensive trade shall be carried on upon said premises or anything be done thereon which may be or become an annoyance or nuisance to the neighborhood, and, especially, no malt, vinous, or spiritous liquors of any nature or other intoxicating liquors of any nature whatsoever shall be bartered or sold upon any lot.
'We, the said Grantors herein, the present owners of said land and all of the lots into which the same shall be subdivided and shown upon the accompanying map, do hereby declare that any and all deeds by us hereafter made conveying any lot in the Addition herein created shall by reference to the accompanying plat and this dedication adopt and declare the above and foregoing conditions and restrictions as a part of the consideration for such conveyance or conveyances the same as if the said conditions and restrictions were set out infull in any such deed or deeds.
'Each and all of the above conditions and restrictions shall be and remain in full force and effect, and run with the title to each of said lots for a period of Twenty-five (25) years from and after the date hereof, excepting the condition or restriction Number Four (4) establishing a public utility easement, which shall be and remain in full force and effect for said period of Twenty-five (25) years from and after this date and as much longer as the same shall be necessary for the purposes therein set forth, not exceeding the period of Fifty (50) years from this date.'
The term 'lot' used in this instrument was not defined.
A plat of the Addition, delineating the Addition as it is now and also as it was in 1939, is as follows:
There is nothing on the plat or in the instrument dedicating ways and declaring covenants which indicates that tracts 1, 22 and 32 were intended for any public use, or were intended for the special use and benefit of such persons as became the owners of the 29 lots which are marked on the plat as 50 feet wide.
Certain changes have been made in some parts of the Addition since 1939. Thus in 1939 tract 32 was an undivided tract covering 1.01 acres but it has since been divided into 6 lots. The proof does not show exactly when tract 32 was subdivided but Mrs. Gaertner said that this occurred before any lots on Green Avenue were sold. Mrs. Gaertner described these lots in tract 32 as being 50 feet wide by 150 feet long. These dimensions do not precisely fit the dimensions of tract 32 shown on the plat, but we infer, from a comparison of the dimensions stated by Mrs. Gaertner with the dimensions marked on the plat and from the location of the houses on tract 32 shown by the aerial photograph of the Addition, that 3 of these 6 lots face Twin City Highway and the other 3 face Red Bird Lane. These 6 lots have been marked upon tract 32 by the broken lines shown on the plat above.
Further, the defendants Gaertner, in 1940 or 1941, made an exchange of lands which changed the form of tract 22 and converted it into a rectangle. They apparently conveyed the northwestern part of the original tract 22 and received a small triangular tract in the southernmost part of the Laughlin & Barrier Addition. The length of...
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