Harrington v. Young Men's Christian Ass'n of Houston and Harris County

• Citation: 452 S.W.2d 423
• Decision Date: 11 March 1970
• Docket Number: No. B-1594,B-1594
• Parties: Ross Edward HARRINGTON et al., Petitioners, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF HOUSTON AND HARRIS COUNTY, Texas, Respondent.
• Court: Supreme Court of Texas

Page 423

452 S.W.2d 423

Ross Edward HARRINGTON et al., Petitioners, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF HOUSTON AND HARRIS

COUNTY, Texas, Respondent.

No. B-1594.

Supreme Court of Texas.

March 11, 1970.

Rehearing Denied April 29, 1970.

Ralph Abercia, Mabel Grey Howell, Houston, for petitioner.

Sears & Burns, Will Sears and David F. Beale, Houston, for respondent.

GREENHILL, Justice.

This action was brought by the Y.M.C.A. for a declaratory judgment that its proposed building upon, and use of, a large lot in Post Oak Estates, a restricted subdivision in Houston, would not violate any of the terms of the restrictions of the subdivision. Named as defendants were Ross Edward Harrington and others who were designated as representatives of the opposing class of land owners in the subdivision. It was the basic contention of the defendants that the Y.M.C.A. would violate the main restriction of the subdivision which they alleged to be that the property could be used for residential purposes only. ¹

The Y.M.C.A. moved for a summary judgment, and the trial court granted it. The Court of Civil Appeals affirmed. 440 S.W.2d 354. We reverse.

The Y.M.C.A. did not establish as a matter of law that the anticipated building upon, or use of, the land in question would not violate the restrictions. This Court has recently held that a summary judgment should be granted, and if granted should be affirmed, Only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.Sup.1969); Rule 166-A(c), Texas Rules of Civil Procedure.

The summary judgment proof offered by the Y.M.C.A. consisted of (1) the deed restrictions, (2) various deeds to land in the subdivision, including the deed to the Y.M.C.A. showing that the land was subject to the restrictions, (3) a resolution of the board of directors of the Y.M.C.A. stating, in effect, that it did not intend to violate any restrictions, and (4) an affidavit by the director of this Y.M.C.A.

The restrictive covenants are set out in the appendix to this opinion. They provide, as here relevant, that no business house, sanitarium, hospital, saloon, place of public amusement or entertainment, apartment house, rooming house, boarding house, or place of business of any kind 'shall be constructed, built, kept or maintained on any tract in the subdivision nor shall any house on the premises be used for any such purpose, but shall by used for residence purposes only.' No more than two homes could be constructed on any tract, and the minimum value of a 'residence or main building' was fixed. No garage apartments were permitted except at the rear of the property. No liquor could be sold on any tract. No residence should be constructed closer than 35 feet from the front line, or closer than 25 feet of the side line of the property, and these limitations applied to porches, steps, et cetera where there was a roof covering. All garages, barns, servants' houses and similar buildings should be constructed in the rear of the residence except where they were a part of the main residence. Then there was a prohibition against nuisances, advertising signs, open toilets, and the keeping of swine in the subdivision.

The board of directors of the Y.M.C.A., shortly after the filing of this suit, passed a resolution stating that it 'does not intend to violate any of the validly existing restrictions imposed' on the lots; that it shall not construct any of the prohibited buildings (such as a sanitarium, hospital, saloon, place of public amusement, apartment house, rooming house or place of business of any kind), and that the property shall be used 'only to promote the religious, educational and physical development of boys, young men, and families, generally; * * *' and that it desired to develop such tract of land to promote such purposes through a neighborhood association called the West Family Branch Y.M.C.A. The resolution is attached to the affidavit of Joe Robertson, the director of the Y.M.C.A.

The Robertson affidavit stated that he knew almost all of the owners in the subdivision including those who opposed the new construction; that 'I know which of such owners oppose the construction by the Y.M.C.A. of facilities to promote the religious, educational and physical development of boys, young men and families'; that the Y.M.C.A. 'had had its property in Post Oak Estates subdivision graded, and intends to construct on its property a building or buildings to promote its purpose as set out above (religious, educational and physical development of boys, young men, and families), and in the certified copy of the resolution of the Board of Directors of the Y.M.C.A. which is attached to this affidavit.'

There are no plans or drawings of any proposed building or buildings in this summary judgment record to show what uses or purposes would be made of the property. ² There is no summary judgment proof as to who is to occupy the...