Saccomanno v. Farb, 5237

• Citation: 492 S.W.2d 709
• Decision Date: 22 March 1973
• Docket Number: No. 5237,5237
• Parties: I. J. SACCOMANNO and Shirley Saccomanno, Appellees, v. Harold FARB, Appellant.
• Court: Texas Court of Appeals

Page 709

492 S.W.2d 709

I. J. SACCOMANNO and Shirley Saccomanno, Appellees, v. Harold FARB, Appellant.

No. 5237.

Court of Civil Appeals of Texas,

Waco.

March 22, 1973.

Rehearing Denied April 12, 1973.

Saccomanno, Clegg, Martin & Kipple, Bruce L. James, Houston, for appellant.

Butler, Binion, Rice, Cook & Knapp, Tom Alexander, Houston, for appellees.

VIC HALL, Justice.

I. J. Saccomanno and wife brought this action to enjoin Harold Farb from building a multi-story apartment complex on a 7.5-acre tract in the City of Houston, contending that under the doctrine of 'reciprocal negative easements' defendant's land is burdened with a deed restriction which prohibits its use for other than single-family, one-story residences. On motion of the defendant, summary judgment was rendered that plaintiffs take nothing. We affirm.

In a summary judgment proceeding the burden of proof is on the movant. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., (Tex.Sup., 1965) 391 S.W.2d 41, 47. He must establish his right thereto by showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Para. (c), Rule 166--A, Vernon's Tex.Rules Civ.Proc.; Farley v. Prudential Insurance Company, (Tex.Sup., 1972) 480 S.W.2d 176, 178. However, a summary judgment proceeding may reach a stage which requires the nonmovant to produce proof or suffer judgment against him. Torres v . Western Casualty and Surety Company, (Tex.Sup., 1970) 457 S.W.2d 50, 52.

There are no affidavits, admissions, depositions or other forms of 'testimony' of record in this case. The judgment was rendered solely upon the pleadings of the parties and certified copies of the following deeds and plat:

1. A deed from Rice Institute to Glenn H. McCarthy, dated December 19, 1935, conveying 10.143 acres of land (hereinafter called 'TRACT I') in Harris County, Texas. The grant was 'made and accepted subject to the following restrictions which shall continue . . . until January 1, 1956: (a) The property . . . shall be used for residential purposes only . . .'

2. A deed from Rice Institute to Glenn H. McCarthy, dated April 22, 1939 conveying 8.6 acres of land (hereinafter called 'TRACT II') in Harris County, which adjoined TRACT I on the north. The conveyance expressly restricted the use of the property, for ten years from the date of the deed, 'for residential purposes only,' and the grantor agreed to subject its property (of undesignated size) lying north of TRACT II to the restriction.

3. A deed from Glenn H. McCarthy to H. M. Cohen, dated December 31, 1953, conveying all of TRACT II except a strip 30 feet wide along and the length of the southern boundary of the tract. This deed contained the following covenants, conditions and restrictions:

'The property herein conveyed is conveyed subject to the covenant, hereby made by grantee, and the condition that, within a period of six (6) months after the date hereof, grantee shall construct or cause to be constructed at no cost or expense to grantor, a residential type concrete street, which street shall be at least twenty-five (25) feet in width and bounded on the north and south sides thereof by a concrete curb and gutter, in the center of the property which by deed of even date herewith executed by grantor and grantee herein has been dedicated to public use for street purposes only (said property being hereinafter referred to as the 'Street Property').

'The further covenants, conditions and restrictions are:

'(1) That no house, building, or other structure save and except garages or other service buildings comprising a part of such house, building, or other structure shall ever be placed or erected upon the property herein conveyed, either by the grantee herein, or by his heirs, executors, administrators or assigns, except as follows:

'(a) That property herein conveyed, except such portion thereto as has been dedicated by grantee herein for street purposes only, shall be used for single-family, one-story residence purposes only, and no residence shall be constructed which has a total area of less than 2,000 square feet in the main structure, exclusive of such areas as porch, porte-cochere, breezeway and/or garage areas;

'(b) Any residence constructed on the property herein shall be constructed so that any such residence along the street property fronts the street property and no garage or other service area shall be located at a lesser distance from the north boundary of the street property than the main structure of the residence of which the garage or other service area comprises a part;

'(2) That all or any part of the property herein conveyed except the portion of the street property dedicated by grantor to the public use for street purposes only, if hereafter conveyed by grantee, or by his heirs, administrators, executors or assigns, shall be conveyed subject to the coverants, conditions and restrictions set forth in this deed.'

4. Separate deeds by McCarthy and Cohen, dated December 31, 1953, which, together, dedicate a strip of land 60 feet wide out of TRACT II along, and the full length of, its southern boundary, for public use as a public street known as Underwood Street.

5. A deed from H. M. Cohen to J. L. Levin, dated January 9, 1954, conveying the remainder of TRACT II.

6. A plat filed of record by J. L. Levin on March 19, 1954, subdividing the remainder of TRACT II and naming the subdivision 'Devon Estates.

7. A deed from J. L. Levin to plaintiffs, dated August 2, 1962, conveying lot eleven in Devon Estates.

8. A deed from Glenn H. McCarthy and wife to defendant, dated May 22, 1972, conveying TRACT I.

Plaintiffs pleaded that shortly after McCarthy acquired TRACT I he 'constructed his home thereon at a cost of several hundred thousand dollars' and that he ...