Hooper v. Lottman

• Decision Date: 19 November 1914
• Docket Number: (No. 364.)
• Citation: 171 S.W. 270
• Parties: HOOPER et al. v. LOTTMAN et al.
• Court: Texas Court of Appeals

171 S.W. 270

HOOPER et al. v. LOTTMAN et al.

(No. 364.)

Court of Civil Appeals of Texas. El Paso.

November 19, 1914.

Rehearing Denied December 10, 1914.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by J. C. Hooper and another against H. W. Lottman and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

Sam, Bradley & Fogle, of Houston, for appellants. Ellis P. Collins and S. H. Brashear, both of Houston, for appellees.

HIGGINS, J.

J. C. Hooper and the Hyde Park Water Company, a corporation, brought this suit against H. W. Lottman and Norbert Lottman, owners of the east half of lot 3 in block 19 in Hyde Park addition to the city of Houston, and against R. J. Rochow, a contractor and builder, to restrain and enjoin them from erecting, completing, or using a barn upon said premises within a distance of 60 feet from Fairview avenue.

Hooper resided and owned property in the Hyde Park addition, and the Hyde Park Water Company owned the west half of said lot 3 and other property therein. The Hyde Park Improvement Company, a corporation, was the common grantor of the plaintiffs and Lottmans. Said company was the owner of the Hyde Park addition to the city of Houston, and subdivided and laid same out in lots, blocks, and streets. The company, having disposed of all its holdings, was dissolved and is no longer in existence. The addition was designed and intended by the company to be an exclusively residential district, and in furtherance of this design a resolution was adopted by its board of directors, providing certain building restrictive clauses should be contained in the deeds to property sold by the company. One of the restrictive clauses reads: "No barn or building of similar nature shall be erected closer than ____ feet to any street." Not more than two deeds to purchasers were executed without this restrictive clause. The blank space was filled in differently in the various deeds, so that there was not absolute uniformity in the distances from streets within which the prohibited class of buildings might be erected. The deed the Lottmans claimed under stipulated that the prohibited buildings should not be erected closer than 60 feet to the street.

There has been much judicial writing upon the subject of restrictive covenants of the kind here considered, and as may be anticipated, from the very nature of the topic, the cases abound in fine and subtle distinctions. Many of the decisions upon this branch of the law appear to be in hopeless conflict, but are usually reconcilable when the facts peculiar to each are understood. In fact, the courts seem to have had no special difficulty in ascertaining and declaring the controlling general principles of the law, but, in their application to concrete facts, it may well be said that the decisions are in hopeless conflict and confusion, and individual cases are without value as precedents, except as general principles are recognized and declared. No attempt will therefore be made to analyze the decisions, as applied to the various state of facts upon which they are based.

Whether a person not a party to a restrictive covenant has the right to enforce it depends upon the intention of the parties in imposing it. This intention is to be ascertained from the language of the deed itself construed in connection with the circumstances existing at the time it was executed. The vendor's object in imposing the restrictions must in general be gathered from all the circumstances of the case, including the nature of the restrictions. If the general observance of the restriction is in fact calculated to enhance the values of the several lots offered for sale, it is an easy inference that the vendor intended the restriction for the benefit of all the lots. The most familiar cases in which courts of equity have upheld the right of owners of land to enforce covenants to which they were not parties are those in which it has appeared that a general building scheme or plan for the development of a tract of land has been adopted, designed to make it more...