Scott v. Champion Bldg. Co.

• Decision Date: 05 April 1930
• Docket Number: No. 10722.,10722.
• Citation: 28 S.W.2d 178
• Parties: SCOTT et al. v. CHAMPION BLDG. CO. et al.
• Court: Texas Court of Appeals

28 S.W.2d 178

SCOTT et al. v. CHAMPION BLDG. CO. et al.

No. 10722.

Court of Civil Appeals of Texas. Dallas.

April 5, 1930.

Rehearing Denied May 17, 1930.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by Mrs. Mae Joe McClelland Scott and others against the Champion Building Company and others. From a judgment dismissing suit, plaintiffs appeal.

Reversed and remanded.

L. S. Stemmons and Smithdeal, Shook, Spence & Bowyer, all of Dallas, for appellants.

D. A. Frank, of Dallas, for appellees.

LOONEY, J.

Appellants sued appellees to enjoin the erection of a gasoline and oil filling station on lot 1 in block 41 of Winnetka Heights addition to the city of Dallas, and the appeal is prosecuted from the judgment below sustaining a general demurrer and dismissing the suit.

The question presented is as to the sufficiency of the petition; hence its allegations, with reasonable intendments, will be accepted as true.

Appellants based their right to relief on three grounds, viz.: (a) That the property upon which appellees were engaged in erecting the filling station is situated within a restricted dwelling district; (b) that the filling station was being erected in violation of an ordinance of the city of Dallas, which prohibited the erection of an oil and gas station within 100 feet of a frame dwelling or residence; and (c) that appellees were violating a valid zoning ordinance adopted the 11th day of September, 1929, which placed the land of appellees in an apartment district, within which the erection and maintenance of filling stations and other business houses and businesses were and are prohibited.

With reference to the first ground, appellants alleged, in substance, that Charles O. Knowles, the owner of a large tract of land situated in Oak Cliff, the western edge of the city of Dallas, platted same as Winnetka Heights addition to said city, indicating on said plat the different blocks and lots with their numbers, the streets and alleys, and had the plat recorded in the office of the county clerk of Dallas county; that later the Russell Realty Company purchased 16 blocks of this addition, including block 41, in which are located the lots claimed respectively by appellants and appellees; that the realty company decided to develop an exclusive residential district, adopted the Knowles plat with minor changes, had streets paved, sidewalks built, and water and sewer lines laid, and sold lots according to said map; that a general scheme was adopted, restricting buildings on lots to dwellings and outhouses of a minimum value to be located so as to preserve a harmonious plan and symmetrical arrangement; that this purpose of the realty company was widely advertised in newspapers and by word of mouth, and lots in said district were greatly enhanced in value, and purchasers were induced to buy by reason of the assurance that the district would be protected from the intrusion of commercial buildings and businesses; that said scheme contemplated the insertion in each deed, conveying lots, the restrictions above indicated, and the realty company did in fact convey each lot with reference to said map, and placed in each deed restrictions to the effect that the lot should never be sold to negroes, that no building or improvement should be erected thereon except dwellings and outhouses of a minimum value, varying according to location, and that improvements should be so located as to conform to building lines; that the company sold substantially all lots in said addition owned by it, and placed in each deed, including the deeds under which both appellants and appellees claim title, the above-mentioned restrictions; that the lots sold have been improved and are largely occupied by home owners, the building scheme has been carefully preserved, and no violation thereof committed; that appellants' predecessors in title purchased relying on representations that similar restrictions would be placed in all deeds to lots sold in the district, and each appellee, at the time he or it acquired his or its interest in lot 1 in block 41, knew of the building scheme, and that each lot in the residential section, including the lots owned and claimed respectively by appellants and appellees, were perpetually restricted to dwellings and outhouses, and had notice, actual or constructive, that the deed from Russell Realty Company to L. W. Leeds, under whom they claim title, as originally delivered, contained substantially all of said restrictions.

These allegations show that the Russell Realty Company (common grantor) adopted a general building scheme or plan intended to enhance the attractiveness and value of lots in said addition for residential purposes; that each lot sold by it was subjected to the restrictions and therefore burdened with an easement in favor of the owners of other lots, that appellees acquired their respective interests in lot 1 in block 41 thus restricted and burdened with knowledge or notice of these facts.

This case, in our opinion, is ruled by the doctrine announced in Couch v. Southern Methodist University (Tex. Civ. App.) 290 S. W. 256, 259. In disposing of that case, Chief Justice Jones announced the doctrine applicable to the case at bar; he said: "It may be stated generally that, where a common grantor opens up a tract of land to be sold in lots and blocks, and, before any lots are sold, inaugurates a general scheme of improvement for such entire tract intended to enhance the value of each lot, and each lot, subsequently sold by such grantor, is made subject to such scheme of improvement, there is created and annexed to the entire tract what is termed a negative equitable easement, in which the several purchasers of lots have an interest, and between whom there exists mutuality of covenant and consideration. 18 C. J. 394, and authorities cited in note."

It was further said that purchasers of lots burdened with such an easement could enforce the restrictions in a court of equity, against other purchasers of lots similarly burdened, provided they purchased with notice, actual or constructive, of the existence of such easement. Although a writ of error was granted in this case and the same was reversed, but on an entirely different ground, the doctrine announced above was in no way modified or disproved. See (Tex. Com. App.) 10 S.W.(2d) 973. This doctrine is abundantly sustained by authorities the country over. See annotation under the title "Who may enforce restrictive covenant or agreement as to use of property." 60 A. L. R. 1227, 1232.

Appellees contend, however, that our decisions in Pierson v. Canfield, 272 S. W. 231, 233, and Johnson v. Poteet, 279 S. W. 902, 903, are in point and decisive against the contention of appellants. We cannot agree that either case is in point, nor that the propositions on which they were determined are involved in the instant case. In the Pierson-Canfield Case we held that plaintiffs failed to prove the existence of a uniform or common building scheme, and in the Johnson-Poteet Case we held that, because the common grantor sold adjoining lots unrestricted as to use, upon which a garage and other businesses were located and operated, defendant's lot was rendered valueless as residential property, and that under these circumstances it would be inequitable to forbid him the use of his lot in like manner for business purposes. We hold, therefore, that appellants' allegations in regard to their first ground for relief stated a good cause of action.

As to their second ground, appellants alleged, in substance, that at the time the suit was filed appellees were engaged in erecting on their lot a gas and oil filling station in violation of two valid ordinances of the city of Dallas, to wit, one that prohibited the erection, in residential districts, of an oil or gas station within 100 feet of a frame building or house; the other that prohibited the erection or alteration of a house within the city, without having first obtained a permit from the building inspector. Without marshaling different relevant provisions of the city charter, we think ample authority will be found that authorized the enactment of these ordinances, that each bears a rational relation to the safety and general welfare of the community, and were therefore valid enactments.

Courts judicially know that gasoline and other inflammable petroleum products are explosive and constantly menace the safety of persons and property, wherever stored or kept for sale. While it cannot be correctly said that a gasoline station is a nuisance per se, yet, when erected and maintained at a place prohibited by a reasonable regulatory ordinance, it may be properly considered a nuisance, by reason of its prohibited location, and dealt with accordingly. See City of Wichita Falls v. Continental Oil Co. (Tex. Civ. App.) 5 S.W.(2d) 561; City of San Antonio v. Robert Thompson (Tex. Civ. App.) 23 S.W.(2d) 796; Pierce Oil Corp. v. City of Hope, 127 Ark. 38, 191 S. W. 405, Ann. Cas. 1918E, 143. Affirmed on writ of error by the United States Supreme Court, 248 U. S. 498, 39 S. Ct. 172, 63 L. Ed. 381; Morgan v. Board of Com'rs, 104 N. J. Law, 13, 139 A. 718; State ex rel. v. Stark, 96 W. Va. 176, 122 S. E. 533; Standard Oil Co. v. City of Danville, 199 Ill. 50, 64 N. E. 1110; In re McIntosh, 211 N. Y. 265, 105 N. E. 414, L. R. A. 1916D, 603.

We are of opinion, however, that these ordinances were impliedly repealed by the comprehensive zoning ordinance adopted by the City of Dallas on September 11, 1929, which will be hereafter considered. This ordinance covers the entire subject-matter of the earlier ordinances, and it is evident the city commissioners intended that they should be superseded by the later ordinance, although we find therein no language of express repeal; but, in view of the comprehensive provisions of the zoning ordinance, covering as it does the entire field of the prior ordinances, we hold that they...