Lebo v. Johnson, 13752

• Decision Date: 06 September 1961
• Docket Number: No. 13752,13752
• Citation: 349 S.W.2d 744
• Parties: William LEBO et al., Appellants, v. E. S. JOHNSON at al., Appellees.
• Court: Texas Court of Appeals

Page 744

349 S.W.2d 744

William LEBO et al., Appellants, v. E. S. JOHNSON at al., Appellees.

No. 13752.

Court of Civil Appeals of Texas, San Antonio.

Sept. 6, 1961.

Clemens, Knight, Weiss & Spencer, Lagerquist & Shaw, Walter G. Lagerquist, Jr., San Antonio, for appellants.

Floyd McGown, Jr., San Antonio, for appellees

MURRAY, Chief Justice.

This suit was brought by E. S. Johnson and some five others as owners of several lots in the City of Terrell Hills, Bexar County, Texas, fronting on U. S. Highway No. 81, also known as Austin Highway a class action, against William Lebo and some seventeen other named persons who own property in Terrell Hills, in their individual capacity and as representatives of all other property owners in Terrell Hills, to cancel existing property restrictions limiting the property in Terrell Hills to private single family residential use, alleging changed conditions, violations of the restrictions, and waiver and abandonment by defendants of the restrictions. The trial was before the court without a jury and resulted in judgment for plaintiffs, cancelling the restrictions as to their property, and defendants have perfected this appeal.

No findings of fact or conclusions of law were requested or made, therefore, implied findings must be indulged in favor of the judgment rendered, when supported by the evidence.

Appellants' first contention is that the judgment of the trial court is not supported by any competent evidence, or is so against the overwhelming weight and preponderance of the credible evidence, as to be manifestly wrong and unjust.

The property within Terrell Hills Subdivision is subject to restrictions, among others, limiting its use to single family private residences. The subdivision was platted, the restrictions formulated, both were duly recorded, and the lots placed on the market in 1929. All lots were thereafter sold subject to these restrictions and none were sold without them. In 1933, Bexar County purchased a right-of-way for a relocation of the Austin Highway, and the State built U. S. Highway 81 thereon, cutting off a small triangle at the northwest corner of the subdivision, and also taking portions of the most northern tier of lots in the subdivision. This highway is now 120 to 130 feet wide, and is one of the most heavily traveled traffic arteries in the City of San Antonio. It is actually a part of a national highway, running from Laredo through San Antonio, Waco, Fort Worth, and on to the Canadian border. The appellees purchased their respective properties in the following years: E. S. Johnson, 1955; Dan Oppenheimer, 1941; Gloria R. Oppenheimer, 1940; Beulah P. Price, 1955; Humphrey R. Price, 1955; C. F. Sims, doing business as Sims Lumber Company, 1949; which was many years after the relocation of the Austin Highway, now known as U. S. Highway 81.

Appellees bought their property with the restrictions shown in their respective deeds, and with full knowledge of the existence of most of the conditions of which they now complain.

Appellants and other persons testified (1) that they purchased, constructed homes, or loaned money upon appellants' property, after investigation and in reliance upon the restrictions; (2) that the destruction of restrictions, and the erection of business structures as requested by appellees, would seriously affect the beneficial use of appellants' property, and (3) that no business structures of any kind had even been erected in the Terrell Hills Subdivision.

There was evidence that the building of business houses on appellees' lots fronting along Austin Highway would not damage or reduce the value of appellants' property, if some modern shopping center was erected on the property. However, in cancelling restrictions the court must assume that the premises will be devoted to the most noxious permissible use. Perkins v. State, Tex.Civ.App., 150 S.W.2d 157; Hill v. State, Tex.Civ.App., 289 S.W.id 801. It is undisputed that the traffic has increased on Highway 81, and is now very, very heavy. There is hope that the through traffic and the downtown traffic will be diverted when International Highway 35 is completed through San Antonio, but the Austin Highway, as now located, will in all probability always be a heavily traveled highway.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

We have prepared and inserted a plat that is not the reproduction of any exhibit in the record, but one that we hope will make the situation along U. S. Highway 81, where it crosses Terrell Hills Subdivision, more readily understood.

The cut-off triangle that borders a distance of 200 feet on North New Braunfels Avenue and 300 feet on Rittiman Road, is shown in the northwest corner or the plat. The Step-down Power Station is shown in the northeast corner. The property owned by the plaintiffs, who are the appellees, is shown by crossmarks, and the property owned by the named defendants is shown by straight marks. Where we could be certain, we have placed the names of the owners on their respective lots. The property of two of the named defendants is too far to the east to be shown on this partial plat. The plat shows the general location of the lots owned by the parties, but is not intended to show the exact measurements of each.

Appellees contend that the restriction should be lifted as to their property because of the persent location and heavy traffic of Austin Highway; bucause the City of San Antonio has erected and operates a step-down power station in Terrell Hills near appellees' property; because commercial signboards have been erected on the outer tier of lots (most of which are appellees' own lots); because there is located on the property of Humphrey R. Price, a plaintiff below and an appellee here, a storage shed and storage yard, wherein building material, trucks and other vehicles, and tools are stored; because city, in 1944 passed a now an incorporated city, in 1944 passed a zoning ordinance permitting business uses along Highway 81; because a dog kennel has been and is still being operated across Highway 81, upon the triangle cut from the remainder of Terrell Hills by the highway; and because their property has little value for residential purposes, but great value for commercial use.

It will be borne in mind that this is not a suit by one or more owners of lots in a restricted subdivision to enjoin other lot owners from violating restrictions, but, on the contrary, is a suit by certain lot owners to cancel and permanently destroy such restrictions as to their lots, based upon changed conditions within and without the restricted areas. There are many decisions relating to both of these kinds of suits. These two lines of decisions are similar in some respects and quite dissimilar in others. Confusion will be avoided if we keep in mind the distinction between these two kinds of cases, and do not try to indiscriminately apply the the rules laid down in one such line of cases to the other. Bickell v. Moraio, 117 Conn. 176, 167 A. 722; Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 5 A.2d 700; Booker v. Old Dominion Land Co., 188 Va. 143, 49 S.W.2d 34; 4 A.L.R.2d 1113.

In Hill v. Ogrodnik, 83 R.I. 138, 113 A.2d 734, at page 737, Justice Capotosto, speaking for the Supreme Court of Rhode Island, said:

'Generally speaking, the purchaser of a lot in a uniformly restricted real estate development, who is himself without fault, is entitled to rely upon the protection of a restrictive covenant so long as it remains reasonably possible to carry out its original purpose. In this connection it is important to keep in mind that there is a marked difference between the effect on the covenant of a bill for an injunction and of one to remove a cloud on title. In the first class of cases, notwithstanding the granting of an injunction, the covenant remains in force for all other purposes, whereas in the second class its removal as a cloud on title nullifies it for all time. Considering the extreme effect on the covenant in cases of the latter type, the prayer of such a bill should be viewed with caution and granted only when the essential allegations are established by clear and convincing evidence.' (Emphasis added.)

The rights which each property owner in a restricted residential area has to have all other property owners therein to not violate such restrictions have been called 'negative easements' which are enforceable by any grantee against any other grantee, each lot being both a dominant and servient tenement. No pecuniary injury need be shown to entitle a dominant owner to equitable relief. 50 Havard Law Review, p. 215; Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 P. 132; Hartman v. Wells, 257 Ill. 167, 100 N.W. 500; Austin v. Van Horn, 245 Mich. 344, 222 N.W. 721; Evangelical Lutheran Church of the Ascension of Snyder v. Sahlem, 254 N.Y. 161, 172 N.E. 455. It is stated in 50 Harvard Law Review, at page 216: 'Perhaps the most noteworthy development of the last fifty years in the field of equitable servitudes is the doctrine that such servitudes become unenforceable when, because of changes in the neighborhood, their purposes can no longer be realized.'

Originally, the Courts while enforcing restrictions by injunction in a proper case refused to remove restrictions as a cloud on title, because such restrictions were contractual in nature, and contractual obligations do not disappear as circumstances change, and should not be removed, as they might have some value in law, though not enforceable in a court of equity by injunction.

With the adoption of the declaratory judgment statutes in the various states this rule was relaxed, and now courts entertain such suits where, due to the radical changes in conditions within and without the restricted areas, the original plan or scheme of development can no longer be accomplished and it would be harsh or unjust to enforce such restrictions within...