Settegast v. Foley Bros. Dry Goods Co.

• Decision Date: 08 April 1925
• Docket Number: (No. 675-4307.)
• Parties: SETTEGAST et ux. v. FOLEY BROS. DRY GOODS CO.
• Court: Texas Supreme Court

270 S.W. 1014

SETTEGAST et ux. v. FOLEY BROS. DRY GOODS CO.

(No. 675-4307.)

Commission of Appeals of Texas, Section A.

April 8, 1925.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Suit by J. J. Settegast and wife against the Foley Brothers Dry Goods Company. From judgment denying temporary injunction, plaintiffs appealed to the Court of Civil Appeals of the First Supreme Judicial District, and it certifies a question. Question answered.

Henry J. Dannenbaum, of Houston, for appellants.

Maurice Epstein, of Houston, for appellee.

GERMAN, P. J.

This case is before the Supreme Court on certificate from the Court of Civil Appeals at Galveston. We summarize the facts:

On December 28, 1920, J. J. Settegast and wife were owners of lots 11 and 12 in block 45 in the city of Houston. On that date they executed to Foley Bros. Dry Goods Company, a corporation, a lease for a continuous period of 99 years, from and after July 1, 1922, with privilege on the part of the lessee to terminate same after 10 years. At the time of the execution of this lease there was a building and other improvements on these lots, and the lease covered the improvements as well as the entire two lots. At the time the lease was given Settegast and wife owned parts of lots 4 and 5 in block 45, upon which there was a building known as the Settegast building. The Settegast building was immediately east of the building on lot 11. It extended up to the west line of lots 4 and 5, but the building on lot 11 was set back 6 feet from the east line of this lot, leaving an alleyway of about 6 feet between the two buildings. The Settegast building was then under lease to certain parties, which lease would expire by its terms June 30, 1922. Paragraph 14 of the Foley lease contains the grounds of disagreement between the parties. It is as follows:

"It is understood that the lessors herein own the rear portion of lot 5 and the adjoining 12 feet of lot 4 in block 45, with the building thereon, fronting on Preston avenue, which property is east of and adjoining lot 11 hereby leased. It is agreed that, if the lessee shall either remodel the present building or construct a new building on the north portion of lot 11 in block 45, which lot is west of and adjoining the rear of lots 5 and 4, that there shall be left open an alley or space 4 feet in width off of the east side of said lot 11, beginning on Preston avenue, and extending back 62 feet along the rear lines of lot 5 and part of lot 4, which said 4 feet wide by 62 feet deep shall be left open as an alley way for light and air from the ground all the way up to and above the top of the building; and it is understood and agreed that the lessors herein and the tenants and occupants of their building on said parts of lots 5 and 4 shall not have any use of said space or alleyway for storage or passageway, except in cases of such emergency as fire or other calamity they may use the space on the surface of the ground temporarily for entrance and exit purposes, but shall not use the space above the first story except for light and air, and shall in no event obstruct said space; and it is further agreed that at the expiration of the present lease from the lessors herein on their said building on said parts of lots 5 and 4, on the 30th day of June, 1922, all exits, entrances, windows, and other openings on the ground floor of said building on said parts of lots 5 and 4, now leading from or into said alleyway, shall be closed and the same shall be made a solid wall."

On December 15, 1922, Settegast and wife executed a lease to M. H. Hurlock on lots 5 and 4, upon which was the Settegast building, which lease was for a continuous period of 99 years from and after January 1, 1923, and which provides that the lessee, his heirs or assigns, may have the right and option of buying the property at any time. On August 24, 1924, this lease was assigned to the Foley Bros. Dry Goods Company, the holder of the lease on lots 11 and 12.

This action was brought by Settegast and wife against Foley Bros. Dry Goods Company to obtain an injunction. Among other things it is alleged that the defendant, Foley Bros. Dry Goods Company, having become the holder of both leases, is about to remove the walls of the building on the east side of lot 11 and of the first three floors of the building on the west side of lots 5 and 4, and to unite said two buildings, thereby closing the alleyway hereinabove referred to from the ground to the height of three stories, and thereby create for its use one entire undivided floor space on each of said three floors. The injunction...