Huey v. Davis
| Decision Date | 05 October 1977 |
| Docket Number | No. 12664,12664 |
| Citation | 556 S.W.2d 860 |
| Court | Texas Court of Appeals |
| Parties | Robert M. HUEY et ux., et al., Appellants, v. Tom H. DAVIS et ux., Appellees. |
Doren R. Eskew, Eskew, Brady Womack & Muir, Austin, for Robert M. huey, et ux.
David L. Tisinger, Austin, for David B. Barrow and Austin Corp.
Tomas H. Davis, Byrd, Davis, Eisenberg & Clark, Austin, for appellees.
O'QUINN, Justice.
Appeal in this cause is from an order of the district court denying plaintiffs below an injunction to arrest construction of a dwelling in a residential subdivision in claimed violation of certain covenants and restrictions impressed upon all lots in Northwest Hills, Section 7, as approved by the City of Austin.
David B. Barrow, like plaintiffs, a resident of the subdivision, and also developer of the area, together with Austin Corporation, developer and holder of title to all lots when conveyed to lot owners, intervened below after the trial court denied plaintiffs an injunction. Plaintiffs are Robert M. Huey and wife, owners and residents of a lot adjoining the lot owned by Tom H. Davis and wife, the defendants, on which they undertook construction of the residence opposing parties contend was started and is under construction in contravention of the controlling covenants.
Appeal from the order denying injunction has been perfected by Huey and wife and by Barrow and Austin Corporation.
Paragraph 8 of the covenants and restrictions, discussed in more detail subsequently, provides in part, pertinent to this controversy, that "No building, wall or other structure shall be placed upon such lot until the plan therefor and the plot plan have been approved in writing by the Developers." (Emphasis added). Davis and wife caused construction of their dwelling to begin and to proceed, despite the fact that approval of their house plans and plot plan had been denied by the developers.
Barrow, acting for the developers disapproved the plans and plot plan and indicated changes necessary to obtain approval. It was after the plans had been disapproved by Barrow and Davis began construction without approval that Huey and wife brought suit seeking an injunction to prevent Davis and wife from continuing with construction.
Decision in this case turns on construction and application of the covenants appellants say appellees have violated.
The restrictions and covenants were placed on record by the developers in the deed records of Travis County in 1965 and in their entirety consist of ten numbered paragraphs initiated by the statement that the developers intend to " . . . impress all of the property included in Northwest Hills Section Seven Addition with the following restrictions, covenants, conditions and uses . . . "
The first four paragraphs pertain to "Designation of Use" (single family residential purposes); "Retention of Easements" (as indicated on recorded plat); "Temporary Structures and Garage Apartments" (prohibited); and "Separate Garages, Guest Houses, Etc." (permitted within limits when attached to main house "provided all other restrictions, covenants, conditions and uses herein are complied with").
Under paragraph 5 ("Minimum Plat Size") no structure may be placed on any lot or plat having "an average width of less than 70 feet." The "Size and Construction of Dwellings" is controlled in paragraph 6:
Minimum set-backs are prescribed under paragraph 7 titled "Set-Back, Front Line, Side Line and Rear Line" in this manner:
"No structure shall be located or erected on any lot nearer to the front plot line than twenty-five (25) feet, nor nearer than five (5) feet to any side plot line except that the total combined setback from both sides shall in no event be less than fifteen (15) feet, nor nearer than fifteen (15) feet to the rear plot line."
The parties join issue on the limitation, if any, paragraph 7 has on paragraph 8 titled "Architectural Control and Building Plans," referred to also in paragraph 6 in relation to "ornamental structures, fences and walls."
Paragraph 8, under which authority the developers acted in declining to approve the Davis plans, is quoted here in full:
Appellees contend that under paragraph 7, providing minimum distances from front, rear, and sides of a lot at which a dwelling may be placed, " . . . a house may be located anywhere on the lot so long as it does not violate these specific restrictions." Appellees argue, "There is nothing in these restrictions that would even suggest or put purchasers on notice that they must comply with any other restrictions concerning the proximity of the house to the rear plot line." This argument derives from the fact that the Davis dwelling under construction is 25 feet from the rear of the lot and not in violation of the 15-foot set-back required by paragraph 7, whereas the developers suggested the dwelling be placed further toward the front of the lot but not encroaching upon the 25-foot front set-back.
Appellants contend that although paragraph 7 is binding, both on the lot owner and the developers, the distances there established are minimum only, and that on that portion of the lot within the set-back lines, the developers have "sole and uncontrolled discretion" to refuse approval of plans "based on any ground . . . the Developers . . . shall deem sufficient," as covenanted for in paragraph 8. It follows that, with covenants binding on lot owners and developers alike, the developers under paragraph 8 would not have authority to require the lot owner to invade the set-back limits fixed by paragraph 7. See the well reasoned opinion of late Justice Norvell in Johnson v. Dick, 281 S.W.2d 171 (Tex.Civ.App. San Antonio 1955, no writ).
We agree with the contention of appellants. We will reverse the judgment of the trial court and remand the cause to the district court with instructions to enjoin further construction by appellees of the dwelling until the plans, including plot plans, are approved by the developers of the subdivision.
Paragraph 8, set out above, reserves to the developers, or an architectural committee, "For the purpose of insuring the development of the subdivision as a residential area of high standards . . . the right to regulate and control the buildings or structures or other improvements placed on each lot." Appellees do not challenge validity of this covenant, nor validity of any of the covenants and restrictions pertaining to the subdivision. In the main they contend only that paragraph 7, providing minimum set-back lines, proscribes action of the developers in approving or in refusing approval of house and plot plans, as to location on the lot, when acting under authority reserved to the developers by paragraph 8.
Appellants Huey and wife acquired their lot from the developers and, after obtaining approval of their plans, constructed their home on the lot adjoining the Davis lot on the east. Some time subsequently, Davis and wife acquired their lot from a prior purchaser and proceeded with construction of a dwelling on the lot without first obtaining approval of the plans from the developers. The covenants and restrictions as recorded in 1965 are uniformly applicable to all lots, and it is elementary that each purchaser is subject to the covenants, since every purchaser buys with actual or constructive notice of the covenants and restrictions.
It has long been the established rule in this state that when restrictive covenants are imposed pursuant to a general scheme or plan for development of a defined tract of land, there exists an inducement for each purchaser to buy, and the agreement becomes part of the consideration. It follows that where there is a general scheme or plan, adopted by the original owner of a tract, for development of the property, and the elements of the plan are secured by covenants embodying the restrictions, the covenants are valid and binding on the developer and all purchasers of lots. Curlee v. Walker,112 Tex. 40, 244 S.W. 497 (1922).
In Curlee the Supreme Court announced...
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