Stanford v. Brooks
| Citation | 298 S.W.2d 268 |
| Decision Date | 25 January 1957 |
| Docket Number | No. 15782,15782 |
| Parties | Travis STANFORD, Appellant, v. W. B. BROOKS et al., Appellees. |
| Court | Texas Court of Appeals |
McDonald, Sanders, Nichols, Ludlum, Wynn & Ginsburg, and Atwood McDonald, Fort Worth, for appellant.
Scott Daly, Fort Worth, for appellees.
Travis Stanford and W. B. Brooks et al. were real property owners, their properties lying within a city residential subdivision platted and dedicated of record as in the usual and customary case. There are two important elements regarding the time and the act of the dedication, they being: (1) ownership in fee by the dedicator without restriction of all the land subdivided, and (2) certain provisions in the dedication reserving unto the dedicator (and to his assigns or grantees thereof) the right to waive certain restrictions of the dedication. One of the restrictive covenants of the dedication related to the placing of fences on any lot of the subdivision. It was provided that no fence should be erected or maintained on any part of any lot on the front side of the building lines shown in the accompanying plat, without the written consent of the dedicator.
The dedicator conveyed away all his right, title and interest in the lots of the subdivision, save and except, perhaps, the right to waive certain restrictive covenants of the dedication. In one of his conveyances he delivered a portion of one of the lots of the subdivision, the size of which being such that no building could be erected thereon or a use of the lot made in accord with the purposes expressed in the dedication. The conveyance thereof was by warranty deed in which no mention was made of the dedication or of any restrictive covenant. The parcel of property in question was not the first property conveyed by the dedicator after the act of dedication. The original grantee of said parcel of property subsequently conveyed it to Stanford, whose residence was located in an adjoining subdivision, 'backing up' to the parcel in question. Stanford unquestionably desired the property so that his home premises would extend from the street in front of his home back to the street on which the lot, of which the parcel in question was a part, would have fronted if used in accord with the dedication under consideration. Stanford had a swimming pool on or near said parcel and he desired to place a fence in such manner that he would have the largest area possible around this swimming pool.
Without permission of either the original dedicator, or of any of the other owners of property within the dedicated subdivision, Stanford proceeded to have a fence erected on the part of lot in question which was on the front side of the building lines shown on the plat referred to in the dedication. The property owners within the subdivision, whose homes fronted on the street therein near the Stanford property, objected and, pursuant to their protest, filed a suit for injunction to require that Stanford remove the fence and refrain from further threatened violation of the restrictive covenants of the dedication relative to the erection or maintenance of any fence in front of the plat's building lines.
The trial court, upon a hearing of the merits, rendered a judgment granting appellees the relief prayed for. From this judgment Stanford has appealed.
The judgment is affirmed.
Stanford's contentions embrace primarily two unique theories. Of these the first premise suggests that he should not be considered bound by the restrictive covenants of the dedication because the dedicator conveyed the property in question by warranty deed without reference to any restriction and that he succeeded to all the rights of the dedicator, including the right to annul and cancel all the covenants and conditions mentioned in the dedication, as would have unquestionably been the right of the dedicator had he changed his mind immediately after he filed the plat and dedication and before any person had changed legal position on the strength thereof. The second premise suggests that even though Stanford be mistaken in the first, appellees are not possessed of any justiciable interest entitling them to enforce the restrictions, the right having been reserved to the dedicator. It is to be noted that the dedicator was not made a party to the suit of appellees, though the parties have stipulated that he has never acted to waive any restriction mentioned in the dedication in accord with its provisions.
We are satisfied that Stanford's contentions cannot be sustained on either theory. However, in resolving the questions it is believed that recourse should be made to the plat and dedication presented. On June 22, 1945, Elmer Wooldridge filed of record in the plat records of Tarrant County, Texas, the dedication of Colonial Park as an addition to the City of Fort Worth. In the procedure followed Wooldridge adopted the map attached to the dedication as his plan for subdividing the property (all of which belonged to him) and dedicated as highways for the use of the public the streets as shown thereon. In the instrument he recited that 'And I do hereby declare that all lots shown upon the said map of Colonial Park are held and shall be conveyed subject to the reservations, restrictions and covenants herein set forth: * * *.' Thereafter certain restrictions, as for instance that relative to the exclusive use of the land for residential purposes, were unreservedly provided. However, as regards certain other restrictions, he provided that he should have the right to alter or even completely waive the same. For example: he reserved the right to change any building line on a lot, limited in respect that no such line could be changed so as to bring it more than five feet nearer any adjoining street shown on the plat; he reserved the right to fix the minimum cost of any and all residences erected; and he provided, 'No fence, wall or hedge nor any pergola or other detached structure for ornamental purposes shall be erected, grown or maintained on any part of any lot on the front or exterior side of the building lines, as shown on said plat, without the written consent of the Dedicator.'
Wooldridge further provided that 'All of the restrictions and covenants herein set forth shall...
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