Klein v. Palmer

• Decision Date: 15 May 1941
• Docket Number: No. 11186.,11186.
• Citation: 151 S.W.2d 652
• Parties: KLEIN v. PALMER et al.
• Court: Texas Court of Appeals

151 S.W.2d 652

KLEIN v. PALMER et al.

No. 11186.

Court of Civil Appeals of Texas. Galveston.

May 15, 1941.

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

Suit by C. A. Palmer and others against N. J. Klein and another to restrain the defendants from selling or offering for sale or permitting intoxicating liquors of any kind to be sold on a certain lot. Judgment for the plaintiffs, and the named defendant appeals.

Judgment affirmed.

Harry W. Freeman, of Houston, for appellant.

Percy Foreman, of Houston, for appellees.

MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Harris County granting an application of appellees, C. A. Palmer and others, for a permanent injunction restraining E. L. Durbin and appellant, N. J. Klein, defendants in the trial court, from selling or offering for sale, or permitting intoxicating liquors of any kind to be sold on Lot No. 215 of Riverview Addition to the City of Houston. Appellees instituted the suit in their own behalf and as class representatives of other persons owning lots in said Riverview Addition. They alleged that appellant, N. J. Klein, was the owner of said Lot No. 215 and that E. L. Durbin had leased said lot from him and that he contemplated erecting a building thereon in which he purposed to sell intoxicating liquors.

Defendants answered by general denial and general demurrer. They specially pled that the restrictions sought to be enforced had been waived and abandoned by the owner of said addition and the residents thereof prior to the filing of the suit.

At the request of defendants, the court made the following findings of fact and conclusions of law:

"Findings of Fact.

"In accordance with the stipulation of the parties, I find that defendant, N. H. Klein, took the title to lot No. 215, of Riverview Addition, with notice of the covenant in the deed, referred to in the pleadings as the 9th Restriction, reading as follows:

"`No spiritous, vinous or malt liquors or medicated bitters capable of producing intoxication shall be sold or offered for sale on said premises or any part thereof.'

"That said covenant, among others, was adopted by W. L. Edmundson who platted said addition on November 30, 1926, and that at this time there remained only about nine years before it will expire by lapse of time, on January 1, 1950.

"That lots 1 and 2 of Riverview Addition, fronting on Telephone Road, have had a store building located thereon for many years, and that ever since the repeal of the 18th Amendment to the Constitution of the United States, beer has been sold in said store building and is being sold at the present time; that for more than two years Wright's Filling Station, situated upon Lot 96 of Riverview Addition, fronting on Telephone Road, has been selling beer, and that for a period of six months prior to the filing of this suit, Gordon's Liquor Store situated upon Lot 92 of said addition, also fronting on Telephone Road, has been selling intoxicating liquors, and that no action of any kind has been taken by any of the residents of Riverview Addition, including the plaintiffs herein, to prevent the selling of either beer or other intoxicating liquors, and that this suit filed against Durbin and Klein is the first action taken throughout these many years to enforce the observance of said 9th Restriction.

"Conclusions of Law.

"The court concludes that, as a matter of law, the several violations of said restriction, enumerated above, are insufficient to establish a waiver or abandonment by plaintiffs of their rights under said covenant or 9th restriction, and that plaintiffs are entitled to the injunction herein granted to continue until January 1, 1950."

The record shows that the deed from W. L. Edmundson to the respective purchasers, including the deed conveying said Lot No. 215, owned by appellant Klein, and to the lots owned by appellees contained the following covenants and restriction:

"This conveyance is made and grantee accepts the same subject to the following covenants and conditions, which it is agreed shall be deemed to be covenants running with the soil, and shall continue in full force and effect until January 1st, 1950: `9th: No spiritous, vinous or malt liquor or medicated bitters capable of producing intoxication shall be sold or offered for sale on said premises or any part thereof.' * * * The grantees accept this conveyance subject to the restrictions, easements, covenants and conditions set forth, which it is agreed shall be deemed to be covenants running with the land, and for themselves, their heirs and assigns, covenant to and with the grantor and his heirs and assigns, that they will observe, and that their heirs and assigns will forever faithfully observe and perform said several restrictions and conditions and each of them, and if grantees or any other persons claiming under them shall at any time violate or attempt to violate, or shall omit to perform or observe any of the foregoing...