Hubbard v. Ehman

• Decision Date: 17 April 1930
• Docket Number: No. 9462.,9462.
• Citation: 28 S.W.2d 270
• Parties: HUBBARD v. EHMAN et al.
• Court: Texas Court of Appeals

28 S.W.2d 270

HUBBARD v.EHMAN et al.

No. 9462.

Court of Civil Appeals of Texas. Galveston.

April 17, 1930.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Carl B. Ehman and others against T. B. Hubbard.The trial court granted a temporary injunction, and defendant appeals.

Affirmed.

Sewall Myer and J. H. Painter, both of Houston, for appellant.

Kennerly, Williams, Lee, Hill & Sears, of Houston, for appellees.

GRAVES, J.

This appeal challenges as error the granting below, following the hearing of evidence, of a temporary injunction—effective until final trial—restraining appellant from erecting any business building on his two and one-half lots in Hyde Park addition to the city of Houston, upon five propositions of law, which in substantial effect are:

(1)The appellees' petition for the writ awarded was obnoxious to the general demurrer and certain special exceptions directed against it, in that it did not state all essential elements entitling them to that relief, negativing every inference of the existence of facts warranting a denial of it, and did not specifically detail such facts as properly enabled the court to determine from the pleadings whether the allegations were well founded, but reflected only general averments as to the essentials of the right declared upon, which constituted mere conclusions of the pleaders and were insufficient.

(2)The Court erred in permitting the witness Greenwood to testify that the officers of the Hyde Park Improvements Company—the corporation that put the addition involved on the market and became the common source of title of all parties to the suit—stated to himself and others when buying lots therein that one particular place in Hyde Park would be used for business houses, and that no other business houses would be permitted in the addition, because the improvement company had passed and spread upon its minutes a resolution of contrary import governing its officers and agents on this subject, which minutes were available and constituted the proper evidence of the corporation's action in that matter, the contradictory statements of its individual officers—especially since they were shown to be deceased and the Corporation itself being long since dissolved—were inadmissible.

(3) The right to enforce the restrictive covenant here invoked that is "No. 1—No business houses shall ever be erected on any part of the lots herein conveyed"; is, if it exists at all, a servitude running with the land in favor of the lots owned by appellant and such servitude or burden curtailing the liberty of the owner to use and improve his property as he chooses is an interest of such magnitude as to constitute an estate in lands and, as such, must be established by evidence that meets the requirements of the statutes and must be shown to have been created as other such servitudes, interest, and estates in land are required to be created, viz, by written instrument, properly signed and acknowledged."

(4)"Where there is a general building scheme for a great number of persons and then either by permission or acquiescence or by a long chain of things the property has been entirely or so substantially changed as that the whole character of the place or neighborhood has been altered so that the whole object for which the covenant was originally entered must be considered at an end, Courts of Equity will not enforce such restrictive covenants."

(5)"The owner of a lot cannot enforce a building restriction against the owner of another lot which has been sold by a grantor where there is no general building scheme or plan and nothing in the deeds to show it was the intention of the original parties that the covenant should be for the benefit of the other lots owners and not merely for the benefit of the original grantor."

In the state of the record, we conclude none of these presentments can be sustained; the second proposition has been so recast here —the appeal being triable without a brief under R. S. article 4662—as to reflect what the context of the brief appellant has filed in this court otherwise indicates was intended, thereby to be raised, rather than anything appearing in bill of exception No. 4, upon which alone it is grounded as to the Greenwood testimony inveighed against, since that bill merely records that an objection to a question asked the witness was overruled without further showing either what his testimony was if he in fact did answer the inquiry or would have been if he did not; hence presented nothing for review.Texas Jurisprudence, volume 3, paragraph 328at page 464, and 131 at page 195, together with footnote citations.

Like or similar procedural discrepancies appearing in relation to some of the other points are likewise treated in the effort to pass upon the merits of the controversy.

No lack of sufficiency is found in the petition of the applicants; this summary of it from appellees' brief correctly and comprehensively reproduces its material and essential elements, which we hold properly stated the cause of action they declared upon, under the appended authorities:

"Paragraph Two, page 2, of the Transcript, is an averment of fact as to the original grantor entering upon and carrying out a general scheme and plan of restricting the uses to which said lots might be put, establishing its residential character as an inducement to the public, as well as to Appellees to buy said lots; setting out the reasonable purpose of the specific restrictions and alleging that the same enhanced the value of said lots to the public and to appellees.

"Paragraph Three, Transcriptpage 3, is an averment of fact that all of the deeds made by the Hyde Park Improvement Company carry the restrictions insuring a residential addition and alleging that Appellees bought or improved their lots in reliance upon the restrictions.

"Paragraph Four pleads the ownership and residence of each of Appellees in Hyde Park and pleads their right therefore to enforce...