MGJ Corp. v. City of Houston

• Decision Date: 21 October 1976
• Docket Number: No. 16744,16744
• Parties: MGJ CORPORATION, Appellant, v. The CITY OF HOUSTON, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 171

544 S.W.2d 171

MGJ CORPORATION, Appellant, v. The CITY OF HOUSTON, Appellee.

No. 16744.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Oct. 21, 1976.

Rehearing Denied Nov. 18, 1976.

Charles D. Kipple, Houston, Saccomanno, Clegg, Martin & Kipple, Houston, of counsel, for appellant.

Jonathan Day, City Atty., Fred R. Spence, Senior Asst. City Atty., Houston, for appellee.

ON MOTION FOR REHEARING

COLEMAN, Chief Justice.

The MGJ Corporation has presented a motion for rehearing in the captioned case which we find meritorious. The motion is therefore granted and the opinion handed down on September 2, 1976, is withdrawn, and this opinion substituted.

This is an appeal from an order denying an application for a temporary injunction. The judgment will be reversed.

Appellant, MGJ Corporation, owns the Santa Rosa Theater located on Lot 2 of the Santa Rosa Community Center, a Subdivision in Harris County, Texas. The City of Houston has located a police substation on certain property which it owns out of Lot 1 of said Subdivision. Adjacent to both properties is a 3-acre tract of land shown on the plat of said Subdivision as 'private parking lot.' The Santa Rosa Community Center was platted on property owned by W. R. Parker and others, hereinafter referred to as Parker Brothers, and is located at the intersection of Telephone Road and Park Place Boulevard. The plat of the community center was filed for record on August 18, 1945, and a replat was subsequently filed in May 1946. This community center was a part of a larger subdivision, and the property was subject to certain restrictions filed of record in 1941 . These restrictions provided that the property which was subsequently platted as the Santa Rosa Community Center could be used only for certain business enterprises.

In 1945 the Parkers conveyed a lot to Interstate Circuit, Inc. which was subsequently replatted as Lot 2 of the Santa Rosa Community Center. This deed stated that as part of the consideration for the sale, a certain 2.75 acre tract 'shall be set aside and used as a parking area, such parking area to be used exclusively by the gantee herein, its successors and assigns and other purchasers and their tenants of property located within said Community Center; provided, however, in the event a bowling alley is established and maintained within said Community Center, the patrons of same shall be restricted against the use of said parking area.' The original plat of the Santa Rosa Community Center shows a 2.75 acre tract labelled 'Reserved as private property for parking area' adjacent to the property purchased by the Interstate Circuit, Inc. This same area appears on the resubdivision plat under the designation 'private parking lot' expanded to include 3.1173 acres.

On October 19, 1946, the Parkers conveyed a portion of Lot 1, Block 9, Santa Rosa Community Center, to Joe Weingarten and others. Subsequently the remainder of this lot was conveyed to J. Weingarten, Inc. by the Parkers. Subsequently conveyances placed title to the entire lot in J. Weingarten, Inc. This property consisted of all of the community center north of the private parking lot and bordering on both Park Place Boulevard and Telephone Road. It adjoined the Santa Rosa Theater property. Neither of the conveyances by which this property was acquired by Weingarten contained a grant of an easement for use of the private parking lot.

Subsequently J. Weingarten, Inc. conveyed the northwest 200 by 240 feet of said Lot 1 to the Odd Fellows Hall Association. In this conveyance an easement for ingress and egress was created over the north 110 feet by 200 feet of the retained property for the benefit of the Odd Fellows Hall Association and the remaining property owned by J. Weingarten, Inc. Thereafter by two conveyances the City of Houston acquired a portion of Lot 1, Block 9 measuring 175 feet along Park Place Boulevard with a depth of 240 feet from J. Weingarten, Inc.; the first of these conveyances was dated March 26, 1959. At some date not shown by the record a fence was erected dividing the property owned by the City of Houston from the parking lot area.

In May 1973 the MGJ Corporation acquired Lot 2 from the Interstate Circuit, Inc. A theater had been erected and was operated on Lot 2 by Interstate Circuit, and the parking lot was used by its patrons. MGJ Corporation has continued to operate the theater and its patrons continue to use the parking lot. The City of Houston built a police substation on the property which it acquired in the community center and began using it as such some thirteen years prior to the date of trial. There is testimony that the officers assigned to that station use the parking lot to park their private cars and on occasion police cars were parked on the parking lot. In January 1976 an opening was made in the fence separating the police station property from the parking lot area and large numbers of marked police cars were parked on the lot on a regular basis. There is testimony that the management of the theater received complaints from its patrons that they were unable to park in the parking lot and that they were having to park a distance from the theater. There is testimony that the parking of the marked police cars on the lot has hurt the business of the theater. The testimony is conflicting as to whether the parking lot is adequate in size to handle the parking needs of the theater and of the police station at peak use periods.

A trial court has broad discretion in determining whether to grant or to deny a temporary injunction. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). Where the only relief sought on final trial is a permanent injunction, the applicant must show a probable right on final hearing to the permanent injunction and a probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex.1968). An erroneous application of the law to undisputed facts will constitute an abuse of discretion. City of Spring Valley v. Southwestern Bell Telephone Co., 484 S.W.2d 579 (Tex.1972). A temporary injunction will not be granted when the evidence raises material disputed issues of fact. Dallas Independent School District v. Daniel, 323 S.W.2d 639 (Tex.Civ.App.--Dallas 1959, writ ref'd n.r.e.); Scurry Area Canyon Reef Operators Corp. v. Popnoe, 283 S.W.2d 819 (Tex.Civ.App.--Eastland 1955, no writ).

The owner of an exclusive easement is the dominant tenant and is entitled to the free and undisturbed use of its property for the purposes of the easement even as against the owner of the fee. Gulf View Courts, Inc. v. Galveston County, 150 S.W.2d 872 (Tex.Civ.App.--Galveston 1941, writ ref'd). Where the language of the deed is doubtful it will be construed to confer on the grantee the greatest estate permissible under the instrument. Gulf View...