Phillips v. Zmotony
| Citation | 525 S.W.2d 736 |
| Decision Date | 08 January 1975 |
| Docket Number | No. 1067,1067 |
| Parties | E. Leon PHILLIPS et al., Appellants, v. Lloyd E. ZMOTONY et ux., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
No appearance for E. Leon Phillips.
Edward J. Wheeler, Felton & Montgomery, Pasadena, for appellees.
This is an appeal from an interlocutory order denying a temporary injunction after a hearing involving a covenant restricting the use of land.
By instrument dated May 30, 1952, and filed for record on June 2, 1952 in Harris County, Texas, Stanley D. Anthony, the owner of 67.61 acres of land out of the W. H. Anthony Survey in Harris County, Texas, dedicated to Harris County for public use as a county road a 60 foot strip of land containing 4.5 acres and dedicated to the Harris County Flood Control District for public use as drainage ditches two parcels of land, one containing 1.2 acres and the second containing 1.3 acres and in said instrument the owner agreed that said 67.61 acres would be held and thereafter conveyed subject to covenants, conditions, stipulations, easements and restrictions as therein set forth. Among other things, said instrument provides as follows:
3. Except as herein provided, no part of said tract shall be used for anything other than residential purposes. . . .
6. No trailer, . . . placed on any part of said tract, shall at any time be used as a residence, nor shall any residence of a temporary character be permitted.
All of the restrictions, covenants, conditions, stipulations, and easements, herein set forth shall be deemed to be covenants running with the land and shall continue and be binding upon the said Stanley D. Anthony, his heirs, and assigns. . . . The covenants, conditions, stipulations, easements, and restrictions, herein set forth shall be binding on the said Stanley D. Anthony, his heirs, and assigns, and on all parties claiming, by, through, or under him or them, and all subsequent owners of property in said tract of land, each of whom shall be obligated and bound to observe the same; . . .. The said Stanley D. Anthony and/or and other owner or owners of any of said parts of said tract of land, shall have the right to enforce the observance and performance of said covenants, conditions, stipulations, easements, and restrictions; and in order to prevent a breach or to enforce observance or performance of the same, shall have the right, in addition to all other legal remedies, to an injunction, either prohibitive or mandatory.
In November of 1973, the defendants Lloyd E. Zmotony and wife Betty Cathleen Zmotony, purchased a 2 1/2 acre tract out of said 67.61 acre tract of land facing on the dedicated public road known as Anthony Lane.
On May 28, 1974, Lloyd E. Zmotony and wife moved a mobile home measuring fourteen feet wide by eighty feet long onto their 2 1/2 acre tract with the intention that it would become the permanent residence of their daughter and her three children.
Prior to the movement of said mobile home onto the lot and while same was still on Anthony Lane, Mrs. Della Thomas, an owner of land in said 67.61 acre tract, notified the daughter of the defendants that the deed restrictions prevented trailer houses on the property. The daughter conveyed this notice to the defendants. At the time of such notice, the mobile home was being pulled by a truck which was hooked to a tongue which was attached to the front of the trailer. The mobile home was mounted on four axles with wheels. Notwithstanding such notice and protest, the mobile home was moved upon the tract and was thereafter connected to a private water supply. The defendants at the time of the hearing had contracted for electric power and installation of a septic tank. The wheels and the trailer tongue were removed and the mobile home was lowered onto concrete blocks and anchored to the ground with 'tie-downs.' The defendants had started to install skirts at the bottom of the trailer to make it rodent proof. To move the mobile home, it would be necessary to jack up the trailer, put the wheels back onto the axles with lugs and to reattach the tongue. The mobile home could then be moved by a truck.
The defendant, Lloyd E. Zmotony, stated that he was not told anything about the restrictions on the land when the deal was closed at the title company. However, the dedication and restrictions dated May 30, 1952 were filed for record on June 2, 1952 and are recorded in volume 2449, page 713 of the deed records of Harris County, Texas. On May 31, 1974, the appellant E. Leon Phillips, together with other property owners in said...
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