Peterson v. Greenway Parks Home Owners Ass'n, 16794

• Decision Date: 21 October 1966
• Docket Number: No. 16794,16794
• Citation: Peterson v. Greenway Parks Home Owners Ass'n, 408 S.W.2d 261 (Tex. Ct. App. 1966)
• Parties: Gilbert E. PETERSON et al., Appellants, v. GREENWAY PARKS HOME OWNERS ASSOCIATION, Appellee. . Dallas
• Court: Texas Civil Court of Appeals

Page 261

408 S.W.2d 261

Gilbert E. PETERSON et al., Appellants, v. GREENWAY PARKS HOME OWNERS ASSOCIATION, Appellee.

No. 16794.

Court of Civil Appeals of Texas Dallas.

Oct. 21, 1966.

Rehearing Denied Nov. 10, 1966.

Robert B. Payne, Strasburger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Ted P. MacMaster, Asst. City Atty., Dallas, for appellants.

Crozier, Sweet & Freeman and William W. Sweet, Jr., Dallas, for appellee.

CLAUDE WILLIAMS, Justice.

Greenway Parks Home Owners Association, designating itself as 'a charitable corporation', instituted this action against William Crawford, and a large number of other property owners in Greenway Parks, a subdivision of the City of Dallas, Texas. The action was brought against the named defendants individually and also as a class action against each and every property owner in Greenway Parks . The City of Dallas, a municipal corporation, was made a party defendant by reason of a contingent interest in the property in question. The subject matter of the litigation was a portion of Greenway Parks Subdivision known as Park A, legal title to which is held by the plaintiff association in trust for the property owners in Greenway Parks Subdivision for private park purposes only, subject to the contingent interest of the City of Dallas. Alleging that Park A has not been and is not now suitable for use as a private park and that it is impractical and improbable that such tract will in the future be used by the property owners in the subdivision as such a park, plaintiff association sought cancellation of the restriction or limitation on the use of Park A and asked to be authorized to sell, lease or otherwise dispose of the property. A number of the property owners appeared and opposed the relief sought, as did the City of Dallas. The Attorney General of Texas intervened on behalf of the public generally. Gilbert E. Peterson, one of the defendants named, filed a cross-action against the plaintiff association, as well as its attorneys and officers, alleging a conspiracy in the collecting of taxes and other assessments and sought an accounting as well as damages. Following a nonjury trial, the court entered judgment in favor of the plaintiff association setting aside and canceling the restriction of the use of Park A as a private park. Such judgmet was without prejudice to any contingent right, title or interest which the City of Dallas might have by virtue of dedicatory instruments. It was further decreed that Gilbert E. Peterson take nothing by his cross-action. From this judgment all parties adversely affected have appealed.

FACTS

By an instrument dated March 12, 1927 which was amended September 28, 1928, F. N. Drane and J. P. Stephenson subdivided into a residential addition a large tract lying north and outside the city limits of Dallas and filed a plat with the County Clerk showing the area in lots and blocks with streets, parkways and parks. ¹ Areas within the subdivision are designated as 'Park' or 'Private Park', numbering some twelve or fifteen in all, and the property in controversy is 'Park A', considerably larger than the other parks, and embraces all of the subdivision lying east of the railroad tracks. Attached to the plats is a dedicatory statement executed by Drane and Stephenson, reading in part as follows:

'* * * it is expressly stipulated herein that all sidewalks, parks, private parks, parkways, park spaces and walks for entrance to parks are not dedicated to the public but same are in all things reserved in the grantors F. N. Drane and J. P. Stephenson, their heirs, administrators, executors or assigns, and any indulgence of said grantors to the public in regard to the use of same shall never be construed as a prescriptive dedication or grant of any kind or character and same shall be construed as a mere license, revocable at will, excepting that the lot owners in said addition are to have the irrevocable right to use said sidewalks as a private way of ingress and egress from their said property and to construct an entranceway from the curb line of the street which the lot faces, to their lots, but no such entrance is to be constructed from Greenway Boulevard, and excepting further that the property above mentioned herein reserved to the grantors and not dedicated to the public, shall never be used by grantors or their heirs, administrators, executors or assigns, for any other purpose or purposes than those designated on the plat, * * *; provided, however, when and in case the owners of the lots in the several installments of Greenway Parks, shall vote to discontinue the maintenance charge against said lots as provided for in the respective deeds of conveyance from grantors of said lots, then said sidewalks, parks, parkways, park spaces, and walks for entrance to pakrs, shall be and are hereby dedicated to the public for the respective uses and purposes as designated on the plat, but in such event, spaces designated on the plat as private parks, shall be and vest for the sole use and benefit of the owners of lots abutting on said private parks, respectively.'

Simultaneously Drane and Stephenson filed an instrument entitled 'Declaration as to Maintenance Fund of Greenway Parks Addition', providing that the Maintenance Fund may be used for the following purposes:

'For lighting, improving, and maintaining the streets, sidewalks, play parks, parks, private parks, and parkways, including all grass in planted areas within the boundaries of said streets, sidewalks and parks; for planting trees and shrubbery and the care thereof; for the care of vacant property, removing grass and weeds; for collecting and disposing of garbage, ashes, rubbish and the like; * * * and doing any other things necessary or desirable in the opinion of the grantors, to keep the property neat and in good order, or which in the opinion of the grantors may be of general benefit to the owners and occupants of the land included in said Installment.'

The declaration fixed a maximum annual maintenance charge to be levied against the lot owners and provided that these charges would be secured by a lien upon the lots and payable to grantors annually in advance.

Moreover, said declaration provided that:

'Grantors reserve the privilege and right, at their discretion, to organize or cause to be organized a Greenway Parks Home Owners Association and to transfer, assign and delegate to such Home Owners Association, to be composed of lot owners in said Addition, the handling of said Maintenance Fund, and the right and authority to collect such Maintenance Fund, and to do and perform all of the rights and obligations of the grantors, the Home Owners Association to adopt its own by-laws and to elect its governing board of trustees.'

Pursuant to the foregoing provision in the declaration, the Greenway Parks Home Owners Association was formed in 1954 as a nonprofit corporation, providing in its charter that all persons who own lots in the subdivision shall be members. The by-laws provided that the board of trustees do and perform all of the rights and obligations of the original grantors and to acquire title to parks as is vested in the original grantors. Following annexation of the subdivision by the City of Dallas, and fulfilling the obligation with which it is charged within the by-laws of the association, the association brought a trespass to try title suit which was litigated through the Supreme Court of Texas and which resulted in a final judgment vesting legal title to Park A of Greenway Parks Subdivision in Greenway Parks Home Owners Association, without prejudice to any contingent right, title or interest which the City of Dallas might have under and by virtue of the instruments of record affecting the dedication and platting of this addition. Greenway Parks Home Owners Ass'n v. City of Dallas, Tex.Sup.Ct., 312 S.W.2d 235.

The maintenance charge, above described, amounts to about seven thousand dollars per year and the association collected this charge and administered the fund, primarily for upkeep of all parks in the subdivision with the exception of Park A. Contending that Park A, separated from the principal portion of Greenway Parks Subdivision by the railway, is a 'barren, unkempt, vacant tract, covered by native grass and weeds', and not used by the property owners of Greenway Parks Subdivision as a park, as well as a lack of sufficient money to maintain the disputed area as a park, the association brought this action seeking to cancel and strike down the dedicatory provision relating to the use of Park A as a private park and to permit the association to sell, lease, or otherwise dispose of the property and use the funds thereby acquired for the benefit of the property owners of Greenway Parks.

Page 625

OPINION

In nine points of error, briefed collectively, appellants contend that the trial court erred in removing or canceling the restriction, limitation, or dedication of Park A to use for private park purposes because (1) no valid legal grounds have been established by appellee for such cancellation; (2) the judgment is not supported by any competent evidence of probative force, or (3) the evidence is wholly insufficient, to afford the valid basis for removal of the limitation to private park use nor of canceling the easement of appellants and other property owners in Park A for park use; (4) that the record fails to reveal such a complete impossibility or utter lack of suitability for use of Park A for park purposes as to justify cancellation of the restriction; (5) that the record reveals no such change in the neighborhood as to destory the reason and purpose of the restriction or dedication; (6) that appellee is estopped from relying upon its own failure to carry out its duties and responsibilities as trustee for the property owners as the basis for destroying their rights; (7) that the record fails to reveal any abondonment or waiver by appellants, or the...