State v. Reece
| Decision Date | 09 January 1964 |
| Docket Number | No. 14273,14273 |
| Citation | 374 S.W.2d 686 |
| Parties | The STATE of Texas, Appellant, v. Everett C. REECE et ux., Appellees. |
| Court | Texas Court of Appeals |
Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold, Woodrow Curtis, Carroll R. Graham, Asst. Attys. Gen., Austin, for appellant.
L. L. Warner, League City, for appellees.
This is a condemnation suit brought by the State of Texas to condemn appellees' improved residential property, Lot No. 1 in Block No. 2, of Brookhaven Addition, an addition in the City of Houston, Harris County, Texas, for highway purposes. The parties stipulated as to the issues involved in the suit with the exception of the market value of the property. Judgment was entered in favor of appellees for $18,900.00 based on the jury verdict.
Appellant assigns as error the action of the trial court in striking from the record all of the evidence concerning restrictions imposed upon Brookhaven Subdivision by instrument duly filed for record and recorded in Vol. 1006, p. 560, et seq., Harris County Deed Records, and instructing the jury not to consider for any purposes any of the restrictions testified about, and to conduct themselves in their deliberations as though there were no restrictions on the subject property.
A photographic copy of the recorded restrictions, duly certified by the County Clerk of Harris County, was adduced in evidence and later stricken from the record. All of the lots and blocks in Brookhaven Subdivision, including appellees' lot, with the exception of a defined portion of the subdivision having an exposure or frontage on Holmes Road, a much-traveled highway, are restricted to residential use and to the construction and maintenance of only one main residence for one family occupancy on each lot. There is no evidence that such restrictions have ever been terminated, changed or modified in the manner provided in the recorded instrument containing such restrictions, or in any other legal manner. Appellees assert that the evidence shows there were a number of violations of the restrictions and that some of the residential lots in the subdivision at the time of the condemnation proceedings were being used for commercial purposes in whole or in part. Even if there were some violations of the restrictions, as contended by appellees, the record shows that the question as to whether the restrictions were still in effect had never been adjudicated, and that no one could say whether they would or would not be upheld if attacked in court.
Appellees contend that the restrictions were not sufficiently proven and that it was not shown that they were imposed upon the property in question as part of a general scheme. We do not agree. The recorded instrument containing the restrictions was executed by Ben Taub, the reputed owner of the property. The restrictions, as shown by said instrument, were imposed upon the property for the benefit of all the owners of property in Brookhaven. Appellees accepted a deed from Ben Taub conveying to them the lot in question. Appellee, Everett C. Reece, testified that when he moved out on the property in question there were restrictions 'out there'; that Brookhaven Addition was restricted for use as residential property only, with the exception of the portion of the property fronting Holmes Road which was commercial property; and that when he bought the property, Ben Taub told him that it was restricted.
When appellant proposed to introduce in evidence a certified copy of the recorded instrument containing the restrictions, appellees' attorney stated:
Following such statement, the attorney for appellees stipulated that the instrument containing the restrictions offered in evidence by appellant was the instrument purporting to be restrictions for the Brookhaven Addition as it appears in the records of the County Clerk's office of Harris County, Texas. After the copy of the restrictions was introduced in evidence, counsel for appellees stated:
'If it please the Court, continuing my objection in that the fact that it appears of record does not go to its being proved as a general plan and scheme, having been brought to the knowledge of this particular witness and I wish to reserve the right to strike that instrument as the testimony develops.'
It is our view that the restrictions were sufficiently established and proven by the evidence and the stipulation of counsel for appellees. This suit does not involve the title to the property in question but merely the condemnation of property which appellees claim to have bought from Ben Taub and which they knew was restricted to residential use at the time they purchased it. The County Court at Law would have no jurisdiction to determine the title to the property or to determine the validity vel non of the restrictions. Thompson v. Janes, 1952, 151 Tex. 495, 251 S.W.2d 953; Coughran v. Nunez, 133 Tex. 303 Tex. 303, 127 S.W.2d 885. The market value of the property would be affected by such restrictions in all probability so long as they had not been terminated as provided in the instrument creating them, or otherwise legally terminated.
Appellees contend that the restrictions in question are in violation of the rule against perpetuities. The restriction instrument provides:
'All of above restrictions and reservations shall remain in full force and effect perpetually, and shall not be changed or modified in any degree, unless, after the expiration of fifteen (15) years from January 1, 1936, 75% of the owners of the lots hereby subject to these restrictions desire to change, modify, add to or eliminate any one or more of said restrictions.'
The instrument then provides as to the manner of proceeding in connection with the change, modification or removal of the restrictions.
It is thus seen that a procedure is provided for the slimination of the restrictions by a 75% vote of the owners of lots in the subdivision, but if this were not so, the restrictions, being covenants running with the land, although described as perpetual, are not in violation of the rule against perpetuties which, in the final analysis, is merely a rule against the too remote vesting of the title to real property. The purchaser buying the property would...
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Merit Management Partners I, L.P. v. Noelke
...a claim of homestead, to correct a deed, or to establish whether a tract of land is community property or separate property); State v. Reece, 374 S.W.2d 686, 688 (Tex. Civ.App.-Houston 1964, no writ) (validity of deed restrictions is question of title). A leasehold is an interest in real pr......
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City of Charlotte v. Charlotte Park and Recreation Commission
...of the fee simple determinable estate. Staninger v. Jacksonville Expressway Authority, 182 So.2d 483 (Fla.Dist.Ct.App.), and State v. Reece, 374 S.W.2d 686 (Tex.Civ.App.), involved zoning restrictions and restrictions imposed by a covenant. These are distinguishable for the reason that the ......
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Moschetti v. City of Tucson
...taken by condemnation. Staninger v. Jacksonville Expressway Authority, Fla.App., 182 So.2d 483, 22 A.L.R.3d 950 (1966); State v. Reece, 374 S.W.2d 686 (Tex.Civ.App.1964); and see the annotation at 22 A.L.R.3d 961. We think their ruling on that question is In so holding, however, we do not m......
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Moore v. Smith
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