Massengill v. Jones, 6985
Decision Date | 17 December 1957 |
Docket Number | No. 6985,6985 |
Parties | Roy E. MASSENGILL, Appellant, v. Raymond JONES et al., Appellees. |
Court | Texas Court of Appeals |
L. F. Burke, Longview, for appellant.
Kenley, Sharp, Ritter & Boyland, Earl Sharp, Longview, Bean & Ford, Foster T. Bean, Kilgore, Smead & Harbour, Longview, for appellee.
Roy Massengill, as plaintiff brought suit against Raymond Jones and Cherokee Water Company, alleging that defendant Cherokee Water Company had issued shares of stock and made leases with 1,500 parties on lots fronting on Cherokee Lake, including plaintiff Massengill and defendant Jones, with Massengill and Jones having adjacent lots on the lake, with plaintiff further alleging that each of said leases contained a provision as follows: 'With the exception of a landing pier and boat-house, no structure shall be built nearer than seventy-five feet from the spill-way water level of said lake, nor shall boat piers or structures be extended into boat roads,' and alleging that the placing of such provision in each of the said 1,500 leases created a general building scheme or plan of development of the lots bordering on said lake designed for the purpose of making the lake and land more attractive for residential purposes and as an inducement of each lessee to lease from the lessor an individual lot, and that such alleged restriction inured to the benefit of each lessee who could sue to enforce same and further alleged that Jones violated said alleged restrictive covenant by building (or commencing the building) of a concrete block house within 35 or 40 feet from the spill-way water level of said lake. Plaintiff sought an injunction against Jones to restrain him from completing the building and a mandatory injunction to require the removal of the building. Plaintiff also sought an injunction against the defendant Cherokee Water Company to enjoin it from refusing to stop Jones from completing the structure or from occupying same and from refusing to enforce the alleged restrictive covenant in question, etc.
The trial on appellant's application for permanent injunction was had before the court without the intervention of a jury. At the conclusion of plaintiff's evidence the defendants moved the court for judgment in their favor, which was granted. The trial court filed findings of fact and conclusions of law. Appellant's request for amended findings of fact and conclusions of law were denied by the trial court. Massengill has appealed from the judgment of the trial court.
We have carefully reviewed the record and conclude that the trial court correctly rendered judgment for appellees. As hereinafter stated, we think there are several good and sufficient independent reasons why the judgment of the trial court should be affirmed.
First: The burden of proof was upon Massengill to show that Cherokee Water Company owned the Jones lot in question. This appellant failed to prove to the satisfaction of the trial court which found that the lot was owned by Jones. We have carefully reviewed the evidence and it is our opinion that Massengill failed to meet the burden of proof cast upon him to prove that such lot was owned by Cherokee Water Company. Furthermore, Cherokee Water Company did not even claim the lot but in effect in its pleadings judicially admitted that it did not own said lot.
Second: The burden of proof was upon Massengill to show that Cherokee Water Company and defendant Jones executed a valid lease containing the alleged restrictive covenant in question on lot NQ 24-A, the lot in question. This appellant failed to do to the satisfaction of the trial court which fould to the contrary. No executed lease covering the lot in question between Cherokee Water Company and defendant Jones was ever offered in evidence in the cause. Appellant sought to establish that such a lease was executed by the testimony of Guy Lamb, Secretary of the Water Company, attempting to show by Lamb and the records of the Water Company that such character of lease was mailed to Jones at his mailing address at Kilgore, Texas, however on cross-examination Mr. Lamb testified positively as follows: Appellant also points to the evidence of Mr. Lamb wherein he testified to the effect that the record of the Water Company showed that Jones had paid the annual rental charges on lot NQ 24-A from 1950 to 1957. Appellee Jones in his brief contends that the evidence of Lamb indicates that there was some confusion in the records of the Water Company with reference to Lot 22 (another lot which Jones claimed ownership of) and Lot NQ 24-A, and contends that the rentals on lot NQ 24-A were not due to be paid by Jones since the Water Company did not own lot NQ 24-A, but that Jones owned lot NQ 24-A. We have carefully reviewed the evidence and hold that appellant did not discharge the burden of proof incumbent upon him to prove that there was ever a valid lease executed by Jones and the Water Company covering lot NQ 24-A.
Third: The burden of proof was upon Massengill to establish that Cherokee Water Company had a general building plan or scheme to restrict the construction of dwellings at a distance of not less than 75 feet from the spill-way water level of the lake. Appellant failed to prove this to the satisfaction of the trial court. The only proof offered by appellant on this issue was to the effect that the Cherokee Water Company had executed some 1500 leases containing the 75-foot provision.
In 12 Tex.Jur., p. 169, Sec. 106, it is stated:
(Italics ours.)
In 14 Am.Jur., p. 613, Sec. 202, it is stated:
(Italics ours.)
In Pierson v. Canfield, Tex.Civ.App., 272 S.W. 231, 233, it is stated:
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