Ortiz v. Jeter

• Decision Date: 12 April 1972
• Docket Number: No. 15038,15038
• Parties: Jimmy ORTIZ, Appellant, v. Euell JETER, Appellee.
• Court: Texas Court of Appeals

Page 752

479 S.W.2d 752

Jimmy ORTIZ, Appellant, v. Euell JETER, Appellee.

No. 15038.

Court of Civil Appeals of Texas,

San Antonio.

April 12, 1972.

Rehearing Denied May 10, 1972.

Levey & Goldstein, Abe San Miguel, San Antonio, for appellant.

CADENA, Justice.

This is an appeal by Jimmy Ortiz, defendant below, from a judgment permanently enjoining him from violating a restrictive covenant prohibiting the use of his property for other than residential purposes. The attempt by plaintiff, Euell Jeter, to terminate existing violations of the restriction by three other defendants, Victor Lange and Mr. and Mrs. E. D. Hirsch, was unsuccessful because the trial court found that, as to these three defendants, plaintiff and his predecessors in title had been guilty of laches. No appeal has been taken from this portion of the judgment.

The lots in question are situated within the Peel Addition to the City of Pleasanton. The subdivision consists of approximately 90 lots, all but 26 of which are restricted to residential use by restrictions imposed in 1952 and recorded in the office of the County Clerk of Atascosa County. Of the unrestricted lots, 24 lie along the northern and eastern edges of the subdivision, several blocks from the lots owned by plaintiff and defendant, and the record does not disclose the use to which these 24 lots are being put.

The southern edge of the subdivision consists of a tier of 15 lots, all of which front on, and lie along the northern edge of, U.S . Highway 97, which runs from the southwestern corner of the subdivision in a northeasterly direction. Lots 53 and 54, which are vacant and unrestricted, lie at the southwestern corner of the subdivision, at the intersection formed by the highway and Lantana, a residential street. Directly north of these two unrestricted lots is restricted lot 52, which faces on Lantana.

Along the northern edge of the highway between Lantana, on the west, and Lullwood, another residential street on the east, lie restricted lots 71, 72, 73, 74, 75, 76 and 77. Between Lullwood and another residential street, Greenlawn, lie lots 78, 79, 80, 81 and 82, all of which front on the highway and are subject to the restrictions. Lot 19, which is the southeastern corner of the subdivision, lies at the intersection of Lullwood and the highway, and is unrestricted.

The accompanying sketch, which is not drawn to scale, depicts the southern portion of the subdivision in a manner believed to be accurate enough for the purposes of this opinion.

Defendant purchased lots 71 and 72, at the intersection of the highway and Lantana, in 1967, for the purpose of using such lots as a site for a drive-in grocery. He had no actual notice of the restrictions. Plaintiff is the owner of lots 55 and 56 which front on Lantana. Lot 55 lies north of defendant's lots, and is separated from them only by an alley which is 11 feet wide.

Of the 15 lots which front on the highway, three (lots 53 and 54 at the southwestern corner of the subdivision, and lot 19, at the southeastern corner) are unrestricted. Of the 12 restricted lots, the evidence discloses that three (defendant's lots 71 and 72, and lot 74) are vacant. There are residential structures, according to the evidence, on three of these lots (lot 73 and lots 79 and 80), but these residential structures are being partially used for business purposes. Three lots are being used exclusively for business purposes (lots 75, 76 and 77), and one is being used for the storage of equipment (lot 78). The record does not clearly indicate the use which is being made of the other two lots (lots 81 and 82).

On lots 73 and 74, which are immediately to the east of defendant's vacant lots, is a residential structure, one-half of which houses a three-operator beauty shop, complete with an outside sign advertising the business, while the other half is used for residential purposes. Lot 75 is vacant.

On lot 76 Victor Lange, one of the original defendants, has operated a 'freight office' for several years. There is no residential structure on this lot. The only structure is a building with a floor space of 2,400 square feet, 200 square feet of which are used by Lange as his office. The remaining 2,200 square feet of this building are used as a warehouse. This building is about 200 feet from plaintiff's property. No part of lot 76 is being used for residential purposes.

Mr. and Mrs. Hirsch, two of the original defendants, have operated a credit bureau and collection agency on lot 77 ever since they purchased the lot in 1967. Prior to 1967, lot 77 was the site of a drive-in grocery, which had taken the place of a wholesale oil distributing business. Apparently, no part of this lot is being used for residential purposes.

Lots 78, 79 and 80, east of Lullwood, have been owned by Glenn Keeney since 1959. For some time after 1959, he used the lots as the site for his 'oil well servicing' business, and kept oil well machinery and equipment on the premises. Two 'high' buildings which Keeney built on the property are still there. While he was in this business, he maintained on these lots a shop for reworking oil field equipment and kept his trucks there. At the time of the trial, Keeney was no longer in this business. His residence is located on lots 79 and 80, but he still uses part of his land for the storage of 'equipment,' the exact nature of which is not disclosed by the evidence. He uses part of his home as his office, from which he operates a cattle-selling business. This commercial use of the residence is proclaimed by an outside sign. No cattle are kept on these three lots.

At the time that plaintiff purchased lots 55 and 56 in 1967, he was aware of the existence of the businesses, as described in the four preceding paragraphs, which were being operated on the border lots. However, according to his testimony, he did not then know that the lots along the highway were subject to residential-use-only restrictions. At that time, Keeney was still engaged in the business of servicing and reworking oil field equipment. Plaintiff learned that such commercial use of the border lots was in violation of existing restrictions about three months after he moved into his home on lots 55 and 56, but he took no action at that time because, according to his testimony, such commercial operations did not affect his use and enjoyment of his land for residential purposes.

He filed this suit against Ortiz, Lang, and Mr. and Mrs. Hirsch when he discovered that Ortiz was planning to operate a drive-in grocery on lots 71 and 72. He did not join Mrs. Davidson, who operates the beauty shop on lots 73 and 74, because the operation of the beauty shop was not 'hurting anybody.'

Defendant testified that at the time he purchased lots 71 and 72 in 1969, he believed that the lots could be used for commercial purposes because he noticed the existence of commercial enterprises 'all along the highway,' including the commercial development of the land which lies south of the highway. The land south of the highway is not a part of the Peel Addition and is unrestricted. There is evidence to support the conclusion that defendant learned that lots 71 and 72 were restricted to residential use when he first began to haul in dirt for the purpose of raising the level of these lots to that of the surrounding property. He continued his preparations for the construction of the drive-in grocery until he received a letter from plaintiff's attorney. At that time, defendant had cleared and levelled the land, and had constructed at least a portion of the foundation for his proposed building, all at a cost of about $1,600.00. There is no evidence indicating the amount he had spent when he was first told of the existence of the restrictions by plaintiff.

Defendant first contends that plaintiff is not entitled to enforce the restriction against lots 71 and 72 because of the failure by plaintiff and those under whom he claims to object to the previous use of the lots fronting on the highway for non-residential purposes .

It is, of course, well settled that restrictions on the use of land may become unenforceable because the owners of protected lots have remained inactive in the face of prior violations of the agreements. In cases where enforcement of restrictions has been denied because of prior uncontested violations, the courts have spoken in terms of acquiescence, waiver, estoppel, abandonment, and, sometimes, changed conditions. ¹ No serious effort has been made by most courts to delineate the contours of the various doctrines, and where enforcement is denied because of prior violations, the various doctrines are used almost interchangeably. ² The doctrine of changed conditions, perhaps, should be limited to cases where the changed circumstances are the result of developments outside the protected area, since, if the changed conditions are the result of violations within the restricted area, one or more of the other doctrines would seemingly be applicable.

The Texas courts have, with a great degree of consistency, held that the mere fact that the complaining party did not object to previous violations of the restrictions will not bar his right to enjoin threatened violations where the prior violations were 'trivial' in the sense that they did not materially affect his use and enjoyment of his property. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506 (1944); First State Bank of Corpus Christi v. James, 471 S.W.2d 868 (Tex.Civ.App.--Corpus Christi 1971, no writ); Davis v. Hinton, 374 S.W.2d 723 (Tex.Civ.App.--Tyler 1964, writ ref'd n.r.e.); Barham v. Reames, ...