Hunter v. Pillers

• Decision Date: 11 February 1971
• Docket Number: No. 7216,7216
• Parties: E. C. HUNTER and Wife, Stella Hunter, et al., Appellants, v. M. A. PILLERS, Appellee.
• Court: Texas Court of Appeals

Page 939

464 S.W.2d 939

E. C. HUNTER and Wife, Stella Hunter, et al., Appellants, v. M. A. PILLERS, Appellee.

No. 7216.

Court of Civil Appeals of Texas Beaumont.

Feb. 11, 1971.

Clayton Heare, Amarillo, for appellants.

O. M. Calhoun, Amarillo, for appellee.

KEITH, Justice.

The appeal is from a judgment entered in a declaratory judgment action which cancelled and set aside certain restrictive covenants in a deed which prevented plaintiff from using the property for other than residential purposes.

Statement of Case

Vaughan's Hill Top Addition to the Town of Shamrock was dedicated in 1926, by the filing of the plat for record, but the dedication contained no restrictions on the use to be made of the lots therein. About a year later, and before any lots had been sold, the entire subdivision was acquired by E. C. Hunter, but he made no sales of lots until about 1946--1947. At that time, Hunter sold one entire block (No. 203) to two grantee, one of whom was his daughter, by general warranty deeds containing no use restrictions. About this same time, he also sold lots to other parties in each of the remaining three blocks in the subdivision. None of these deeds included any use restrictions.

Beginning in about 1949, however, Hunter began placing restrictions in the deeds to the lots which he sold confining the use thereof to residential purposes. These restrictions were not uniform in language, nor did they refer to any other deed to lots in the subdivision. The deeds to appellants, Fields and Hrnciar, and appellee, Pillers, were in this latter category.

The plaintiff, Pillers, acquired his lots in April 1956, and the deed from Hunter forbade his placing upon the lots any structure 'except a newly constructed building for residential purposes, at a minumum (sic) cost of $5,000.00.' The defendant, Fields, acquired his lots from Hunter in May, 1955, his deed providing that he should not use the property 'save the construction of residence thereon which said residence shall be constructed entirely of new material with a cash value--the time of construction of not less than $5,000.00.' Hrnciar acquired his lots from Hunter in 1959, the restriction in his deed being expressed in this manner: 'No house is to be built on said property costing less than $5,000.00,' but no mention was made of the Use of the 'house', i.e., residential or otherwise. Other variations in the use restrictions are to be found in other deeds offered in evidence, but the foregoing re sume is sufficient to disclose the absence of any definite and uniform plan for the development of the addition. ¹

The addition is located upon a relatively narrow strip of land on the east and west sides of Main Street of the Town of Shamrock. Main Street is also State Highway 83. Blocks 201 and 202, each containing twelve lots, lie to the west of Main Street, north of Sixteenth Street and south of Eighteenth Street. Block 203 is immediately to the north of Eighteenth Street, west of Main Street and contains twenty-two lots. Block 204 is a long block containing twenty-five lots extending from Sixteenth Street to the northern end of the subdivision of Nineteenth Street. All of the lots in Block 204 are east of Main Street.

At the time of the sales previously mentioned herein, the highway traffic through the Town of Shamrock in an east-west direction moved along Twelfth Street as a part of U.S. Highway 66; but in connection with the interstate Highway System and the construction of Interstate 40, the State acquired all of Blocks 201 and 202, except the land of plaintiff Pillers. The State also acquired the southern half of Block 204 south of Eighteenth Street. The plans for Interstate 40 include an underpass at Main Street and access roads parallel to the divided highway on IH 40. The right-of-way for the new highway will extend to the south line of Pillers' property, some twenty feet from his home as located upon his lots.

While the evidence was not developed in detail, Pillers did testify, without objection, that the construction of the new highway adjacent to his home would create 'an intolerable condition' which would prevent his living in and enjoying his home. Also, without objection, he asserted that he had invested about $32,000.00 in his land and improvements. Pillers had procured an appraisal of his property which took into consideration the presence of the new interstate facility; and, according to Pillers, this appraisal showed his land and improvements to have a market value, With restrictions on use as residential property, of $7,800.00. On the other hand, the market value Without such restrictions would be $52,800.00. Upon cross-examination, he admitted that he had a sale for the property, contingent upon the cancellation of the restrictions upon use, of $85,000.00.

Both Fields and Hrnciar testified, generally and without objection, that the cancellation of the restrictions upon Pillers' property would adversely affect the market value of their respective homes. No rebuttal of this testimony was offered.

The jury found: (1--A) that Hunter represented to the appellant, Fields, that he 'intended as a plan that the use of lots in Vaughan's Hill Top Addition be restricted to residential purposes'; (1--B) that Fields relied upon such representation when he purchased his lots in the addition; (1--C) that Hunter inserted the residential use restruction 'in furtherance of such plan' mentioned in 1--A; (1--D) that the market value of Field's lots 'will be impaired by a removal of any residential use restrictions' in the addition. A further finding (No. 2) was to the effect that Hunter included a residential use restriction in the deed to Pillers 'in furtherance of his plan, if any, for restricting the use of lots' in said addition to residential purposes. The jury also found (No. 3) that the market value of Hrnciar's lots would be impaired by the removal of 'any residential use restrictions' in the addition.

In answer to Special Issue No. 4, the jury found that changes 'in the vicinity of' Pillers' lots 'have rendered the said lots reasonably unfit for residential purposes.' Both sides having moved for judgment, that of plaintiff was granted and that of defendants denied, and this appeal follows.

Opinion

One of our appellants is Louise Bear, the daughter of E. C. Hunter (original grantee) and Stella Hunter. This defendant was the grantee in a deed from Hunter conveying ten lots (out of twenty-two in Block 203) and her deed contained no restrictions whatsoever. This deed was dated in 1947, long prior to Pillers' deed. The property so conveyed to Louise Bear is immediately across Eighteenth Street north of Pillers and both parcels are upon the west side of Main Street. However, there are no improvements situated upon the lots immediately across Eighteenth Street from Pillers' property. Mrs. Bear answered individually, as Administratrix of the Estate of E. C. Hunter, Deceased (and his sole heir at law), and as Guardian of the person and estate of Stella Hunter, an incompetent person. She did not allege that Hunter's estate owned unsold lots in the subdivision.

Mrs. Bear complains that the trial court erred in setting aside the restrictive covenants found in Pillers' deed from Hunter. She contends that she is in privity with Pillers and entitled to enforce (or at least have maintained in effect) the restrictive covenants in issue herein. Pillers' deed provided for reverter in the event of violation of the restrictive covenant, the language being quoted in the margin. ²

She then claims that the rights so retained by the grantors were not personal to them and that she succeeded to such rights of reverter as an heir of the grantors. From this premise, she argues:

'If this judgment is allowed to stand as against Louise Bear, then it has set Appellee up in business to make big money profits at the expense of Appellant, Louise Bear, whose contractual rights of reversionary possession (in the event Pillers uses the premises for other than residential purposes) and all other rights held by her under this conveyance will have been destroyed without any compensation to her whatsoever.'

Assuming, Arguendo, that in one or all of the several capacities in which she appeared, Mrs. Bear was entitled to assert a reversionary interest in the event of the breach of this restrictive clause by Pillers, we disagree with her conclusion and overrule her point eight for the reasons now to be stated.

In Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318, 321 (1935), the court held that:

'In every case where parties seek to enforce a restrictive covenant the burden of proof is upon them to establish that the covenant was imposed on defendant's land for the benefit of land owned by them. It is also well settled that in the absence of proof that a restriction was imposed for the benefit of other land, it is construed as a personal covenant merely with the grantor. In many instances it is held that unless it is expressly shown in the conveyance itself that the restriction is imposed for the benefit of other land, or unless there is an obvious...