Norwood v. Davis
| Decision Date | 26 April 1961 |
| Docket Number | No. 10829,10829 |
| Citation | 345 S.W.2d 944 |
| Parties | O. O. NORWOOD et ux., Appellants, v. Mrs. Alden DAVIS et al., Appellees. |
| Court | Texas Court of Appeals |
Gay & Meyers, Austin, for appellants.
John D. Reed, Cofer, & Douglass D. Hearne, Austin, for appellees.
This suit was brought by appellees who are residents of Travis Heights, a subdivision in the City of Austin, Travis County, Texas, for themselves and as representatives of all other residents and property owners in the addition, to obtain a judgment declaring that the restrictions in Travis Heights are in full force and effect. Appellees also sought to enjoin appellants and others not parties to this appeal from violating the restrictions or attempting to release or modify them. The case was tried before a jury but the Court, at the close of all the testimony, withdrew the case from the jury and rendered judgment for appellees. Appellants duty perfected their appeal to this Court.
The appeal is based on nine points and are that the court erred in holding that the instrument modifying the restrictions to Travis Heights was void, in refusing to hold that the restrictions were modified, in holding that the restrictions were covenants running with the land, in holding that appellees had any interest in enforcing the Travis Heights restrictions, in holding that there were uniform restrictions subject to enforcement by residents by injunction or otherwise, in holding that there was no evidence that conditions in the vicinity of appellants' property had changed so as to render it reasonably unsuitable for residential purposes, in holding that there was no evidence that appellees had acquiesced in the operations of business establishments in Travis Heights, in holding that there was no evidence that appellees had waived any rights to enforce the restrictions, and finally in holding that there was no evidence that the harm to the appellants by being prevented from selling their property for motel purposes would be substantially greater than the harm to appellees if appellants were permitted to sell their property for such purpose.
Appellants are owners of approximately four and one-half acres in the subdivision in Austin, Texas, known as Travis Heights. The property was originally subdivided by Citizens Loan and Investment Company on May 31, 1913, and appellants acquired their property in the subdivision by various conveyances from the subdivider and others between the years 1921 and 1927.
Appellants' property, which is situated at the Northeast corner of Travis Heights, was at the time appellants bought it bordered by the Colorado River and a park on the North and a park and other property in the subdivision on the east. At the time they bought the main portion of their land and built their home in Travis Heights the land to the east of their property was a wooded area without any streets except for one little roadway leading to a cottage in the woods.
The City of Austin took approximately 1.75 acres of land belonging to appellants to build the Interregional Highway.
Appellants contend that the property they own has been rendered unsuitable for residential use, and that they were forced to buy other property as new home and say that they contracted the property to a purchaser who proposed to construct a modern motor hotel thereon; that they secured a modification of the original restrictions and obtained a zoning ordinance allowing the construction of a motor hotel.
Appellants present three questions to be decided, and are:
'1. Could the successors in interest to the subdivider of Travis Heights exercise the power to modify the Travis Heights restriction which was specifically reserved in the dedication of Travis Heights that established the restrictions?
'2. May the property owners in Travis Heights enforce the Travis Heights restrictions by injunction where the subdivider reserved the unqualified power to modify the restrictions?
The three restrictions which were modified in the instrument of modification hereinafter mentioned are those imposed in paragraph 4 of the Dedication and read:
'4. All lots when sold by the Company shall be subject to the following conditions and restrictions, binding upon the Company's grantee or any successor in title, which may be enforced by injunction or other legal process enforcing and compelling observance of these restrictions and conditions.
'a. No lot shall be sold or leased to any Mexican or person of Negro blood, or to any corporation or firm composed of Negroes or Mexicans.
'b. Except upon the written consent of the company no residence shall be erected to cost less than three times the selling price at which the Company sells the lot or less than one thousand dollars.
'c. No lot or part thereof shall be used for illegal or immoral purposes, or for sale of spiritous, vinous, malt or other intoxicating liquors.
'd. Except by written consent of the Company no building shall be erected nearer than twenty-five feet of any street upon which said lot may front, and all barns, stables and stable yards erected on said premises shall be next to the alley and not closer than twenty-five feet to any street line.
'e. All telephone or electric light poles and sewer pipes placed by the lot owner shall be placed in the rear of such lot and in the alley if there be one; this may be modified by the the written consent of the Company 'f. Said property shall be used only for residence purposes; this may be modified by the written consent of the company.
The modification agreement changed only the restrictions in subparagraphs d, e and f of paragraph 4 of the dedication, and the property affected by the agreement was that owned by appellants.
The agreement, after reciting in sequence the dedicationDissolution of the corporation, succession by the Stacy heirs and the assigned reason for a change in the restrictions and a description of the property affected, provides:
'Insofar as they effect the property described above said restrictions 'd', 'e' and 'f' are hereby modified as follows:
'1. Restriction 'd' is so modified, eliminated and removed as to permit the construction or erection of a building at any location on said O. O. Norwood property as may be permitted by the zoning ordinances and regulations and Building Code of the City of Austin now or hereafter applicable to said property, and the undersigned expressly consent to the erection of such buildings as shall comply with the setback requirements of the City of Austin.
'2. Restriction 'e' is modified to the extent that telephone poles, electric light poles and sewer pipes may be placed at any location on the said O. O. Norwood property that the owner of said property may select.
'3. Restriction 'f' is modified, eliminated and removed so as to permit the use of said property for any lawful use permitted by the zoning ordinances and regulations and Building Code of the City of Austin.
'except as to the above stated modifications, elimination and removal of restrictions 'd' 'e' and 'f' insofar as they apply to the above described premises all restrictions heretofore existing in said Travis Heights subdivision shall remain in full force and effect.'
Citizens Loan & Investment Company began the development of Travis Heights, but did not complete such development, and on December 15, 1930 transferred all of its property, rights and powers to Stacy Realty Company using the following:
Stacy Realty Company continued the development of the subdivision until it was dissolved by a court order on August 18, 1938, at which time the stockholders were three Stacy sons, and the modification agreement was executed by one of the sons and the heirs and devisees of the others.
Appellants rely initially on the proposition that the power to modify the restrictions was assignable and cite in support thereof the cases of Couch v. Southern Methodist University, Tex.Com.App., 10 S.W.2d 973; Dodson v. Dooley, Tex.Civ.App., 280 S.W.2d 758, er. ref., N.R.E.; Keith v. Seymour, Tex.Civ.App., 335 S.W.2d 862, er. ref., N.R.E.
Appellees say that the instrument executed by the Stacy heirs modifying the restrictions is of no force and effect.
Appellees take the position that they, as successors in title to lots in the original subdivision could maintain the suit to enforce the residential...
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