Harrington v. Young Men's Christian Association of Houston and Harris County, 15450

• Decision Date: 03 April 1969
• Docket Number: No. 15450,15450
• Citation: 440 S.W.2d 354
• Parties: Ross Edward HARRINGTON et al., Appellants, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF HOUSTON AND HARRIS COUNTY, Texas, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 354

440 S.W.2d 354

Ross Edward HARRINGTON et al., Appellants, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF HOUSTON AND HARRIS COUNTY, Texas, Appellee.

No. 15450.

Court of Civil Appeals of Texas Houston (1st Dist.).

April 3, 1969.

Rehearing Denied May 1, 1969.

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

Sears & Burns, Will Sears, David F. Beale, Houston, for appellee.

PEDEN, Justice.

Summary judgment was granted in favor of Y.M.C.A. in its suit for a declaratory judgment in this restrictions case. The trial Court held that restrictive covenants affecting Post Oak Estates subdivision do not prohibit the Y.M.C.A. from erecting on its land in that subdivision and from thereafter using a building or buildings and its land to promote the religious, educational and physical development of boys, young men and families generally.

Subsequent to the entry of the summary judgment, appellants filed a motion asking the trial court to fix the amount of a supersedeas bond, and the amount was set at $250,000.00. Appellants have perfected their appeal from both the summary judgment and the order fixing supersedeas bond at $250,000.00.

Not before us on this appeal are appellee's allegations that the restrictive covenants in question have been waived and abandoned. These allegations were contained in an intervention which was adopted by the Y.M.C.A.; they were ordered severed from this cause by the trial court.

The Y.M.C.A. brought this suit against the appellants individually and as representatives of the class of all property owners in Post Oak Estates subdivision. On May 29, 1940 a map and dedication of the subdivision were filed for record and on June 3, 1940 an instrument relating to restrictions on the use of all its lots was also filed. The Y.M.C.A. subsequently purchased Lot 34 and the adjoining north half of Lot 32 in the subdivision and specially alleged in its pleadings in this cause that if such restrictions are valid, its lots are burdened with the 'alleged' restrictive covenants for their duration. The subdivision consists of 47 lots, ranging in size from 3 acres to 4.46 acres, located on both sides of Augusta Drive, which extends from Westheimer Road on the south to Woodway (formerly Park Drive) on the north.

Appellants offered in evidence at the hearing on their motion to fix the amount of a supersedeas bond, plans of a proposed structure to be erected on the property by the Y.M.C.A., but these plans were not before the trial court on the motion for summary judgment, so we will not consider them in that phase of this appeal.

The restrictions in question provide:

'(1) No business house, sanitarium, hospital, saloon, place of public amusement or entertainment, livery stable, factory, warehouse, 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 be used for residence purposes only. The mention of rooming house or boarding house does not prohibit the renting out of one room, but is intended only to prevent the running of a regular rooming or boarding house. (2) Not more than two homes can be constructed on any lot or tract according to the plat of said subdivision and for that purpose the lots shall be divided into substantially equal parts. The minimum value of any residence or main building that may be constructed on any tract in the subdivision shall be $4000.00 as to the tracts next to Park Drive in said subdivision and on all other tracts such value shall be not less than $3000.00; all such buildings shall face Augusta Drive except that the improvements on the tracts next to Westheimer Road may face Westheimer Road, and those improvements on Park Drive may face Park Drive; provided, however, that the improvements on said tracts facing Westheimer Road and Park Drive shall not be erected closer than 25 feet to the adjoining property line. (3) No garage apartments shall be constructed, except at the rear of the property. (4) No lot or tract of land in said addition shall be sold, conveyed, leased or demised to any person or persons other than of the Caucasian race. (5) No spirituous, vinous or malt liquors, or medicated bitters capable of producting intoxication shall ever be sold or offered for sale, on any tract in the subdivision, or any part thereof. (6) No residence shall be constructed on any tract in the subdivision closer to the nearest point on the front property line of said premises than thirty-five (35) feet, or closer to the nearest point on either side property line of same than twenty-five (25) feet. (7) These restrictions establishing building lines apply to galleries, porches, ports cocheres, steps, projections and every other permanent part of the improvements where there is a roof or other covering. (8) No nuisance, advertising sign, billboard, or other advertising device shall be erected, placed on or suffered to remain upon any tract in the subdivision except with the written consent of the undersigned. (9) All garages, barns, servants' houses, and other such buildings shall be constructed (except where built as a part of and connected to the main residence) in the rear of the residence. (10) No swine may be kept or raised on any tract in the subdivision. (11) No open or surface toilets may be maintained on any tract in the subdivision . Each purchaser of any tract in said Post Oak Estates, takes the title to the property subject to the above restrictions, covenants and conditions, and they shall apply to said tracts until January 1, 1975, provided that at any time within five (5) years before said date the then owners of a majority in number of front feet facing Augusta Drive may by written declaration signed, acknowledged, and recorded in the Deed Records, extend these restrictions, covenants and conditions for a period of not more than thirty (30) years additional. These parties owning and subdividing said tract of land, as well as each and every property owner in Post Oak Estates, may enforce the restrictions above set out.'

Appellants' first four points of error refer to the summary judgment entered by the trial court:

1) 'The trial court erred in granting a summary judgment in favor of the Y.M.C.A., and thus held, in effect, that as a matter of law, Plaintiff was entitled to judgment in its favor, because the use contemplated by the Y.M.C.A. of its land in the subdivision was in violation of the restrictions of use of land in the Post Oak Estates Subdivision.

2) 'The Trial court erred in granting a summary judgment by determining and declaring that Plaintiff may construct a building or buildings upon Lot 34 and the North one-half of Lot 32, POST OAK ESTATES, a subdivision in Houston, Harris County, Texas, and use the Subject property and the building or buildings thereon to promote the religious, educational and physical development of boys, young men and families generally, because such building or buildings and the use of the property is in violation of the restrictive covenants of said Subdivision, of which Y.M.C.A. had notice at the time of tis purchase of the land in question, that the property 'shall be used for residence purposes only'.

3) 'The trial court erred in failing to hold that the restrictive covenants of the Subdivision were binding upon Plaintiff and that the building or buildings contemplated by Y.M.C.A. for its use of land in said Subdivision would be in violation of said restrictions.

4) 'The trial court erred in entering a summary judgment because the judgment erroneously purports to modify the restrictions so as to permit the...