Stewart v. Valenta, 3703

• Decision Date: 02 November 1962
• Docket Number: No. 3703,3703
• Citation: 361 S.W.2d 910
• Parties: Tom E. STEWART et al., Appellants, v. Mrs. Laura VALENTA et al., Appellees.
• Court: Texas Court of Appeals

Page 910

361 S.W.2d 910

Tom E. STEWART et al., Appellants, v. Mrs. Laura VALENTA et al., Appellees.

No. 3703.

Court of Civil Appeals of Texas, Eastland.

Nov. 2, 1962.

Rehearing Denied Nov. 23, 1962.

W. R. Smith, Edward Penshorn, San Antonio, for appellants.

Edward W. Halbardier, Morriss, Morriss, Boatwright & Lewis, Carl Wright Johnson, W. Pat Camp, William C. Church, Jr., Bill Finck, San Antonio, for appellees.

COLLINGS, Justice.

Mrs. Laura Valenta and certain other lot owners out of an approximately 19.69 acre tract of land brought this suit against 50 other owners of lots therein, including Tom E. Stewart, and against 7 lien holders, to set aside, cancel and hold void the restrictive covenants contained in deeds from a common grantor of such 19.69 acre tract. Nineteen of the named defendants filed answers contesting the cancellation of such restrictive covenants. Other defendants either intervened and sought affirmative relief in accord with that sought by plaintiffs or disclaimed any interest therein. Upon a trial before the court without a jury, judgment was rendered cancelling, setting aside and declaring null and void and of no force and effect the restrictive covenants in controversy. The contesting defendants have appealed.

The trial court filed findings of fact and conclusions of law. Appellants urge points contending that the court erred:

1. In finding that the common grantor of the 19.69 acre tract did not intend any uniformity or scheme of covenants and restrictions covering the entire tract; 2. In finding that there was no agreement between the common grantor and its grantees as to any uniformity or overall scheme or plan of covenants or restrictions applying to the 19.69 acre tract; 3. In finding that there was no general uniform plan or scheme of covenants and restrictions applying to all the 19.69 acres which would run with the titles conveyed by the common grantor; 4. In finding that there has been a manifest general change in the neighborhood to commercial use; 5. In finding that the higher per front foot value of the 19.69 acre tract for business purposes relative to the lower value if restricted to residential uses only is confiscatory and unreasonable; 6. In finding that the highest and best use of the 19.69 acres is for commercial purposes; 7. In finding that the balance of hardships favors appellees and that no money damage would result to any property in value by removal of the restrictions; 8. In finding that the covenants and restrictions were merely personal between the common grantor and its immediate grantees and did not run with the titles; 9. In finding that there is no privity of estate, contract or mutuality of enforcement of the restrictions as between the present owners of the 19.69 acre tract; 10. In concluding that the restrictions and covenants are invalid and unenforceable and, 11. In entering judgment nullifying such restrictions and covenants.

The 19.69 acre tract in question is located on the west side of San Pedro Avenue in San Antonio and is bi-sected by Veda Mae Drive. The original owner and common grantor was South Texas Properties Company. In a period of slightly more than two years the common grantor divested itself of title to the entire tract by a series of 8 conveyances. The first instrument executed by such grantor was a conveyance to York which covered a 4 acre tract. It contained a provision that if prior to improvements being built on such 4 acres the grantor should place restrictions on the adjoining property, then the grantee should be bound by the identical restrictions. The adjoining property was described as the remainder of the 19.69 acre tract. Appellees, Mrs. Laura Valenta and Mrs. Laura Miller, are owners of the 4 acre York tract and no improvements have ever been made thereon. One of the conbeyances by the common grantor covered a .74 acre tract for a public road which is known as Veda Mae Drive. Each of the other 6 conveyances contained identical provisions concerning restrictions on the use of the property conveyed. The provisions in each of the deeds in this respect were in substance that the property conveyed should not be used for other than residential purposes and that no structure should be permitted other than single family dwellings with garage for not more than 3 cars and servants' quarters and laundry room; provisions for spacing of buildings relative to the front line and side streets; provisions for the size and area on any subdivision or lot upon which a residential structure could be built and that no dwelling costing less than $8,000.00, exclusive of garage and servants' quarters, should be permitted; that the ground floor area of the main structure, exclusive of open porches and garages, should not be less than 1500 square feet, and certain other provisions and restrictions concerning the use and occupancy of the property conveyed. The York deed conveying the original 4 acre tract contained no provisions for the enforcement of restrictions except the provision to the effect that the grantee therein should be bound by the restrictions, if any, placed on adjoining property. The last conveyance by the common grantor was the Shearer deed covering a 4.28 acre tract. This deed contained no provision concerning enforcement. The enforcement provisions in the other deeds were identical and were as follows:

'Invalidation of any of these restrictions shall not affect in any manner any of the other provisions thereof, which shall remain in full force and effect. If the grantee, his heirs or assigns, violates or attempts to violate any of the restrictions herein contained, it shall be lawful for any other person or persons owning any real property situated in the tract of land now owned by grantor out of which the above described tract is hereby conveyed, to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such restrictions, either to prevent the violation thereof or to recover damages or other compensation for such violation.'

Such deeds, except the conveyance to Shearer, also contained a reservation in the grantor of a right to omit restrictions from unsold portions of the 19.69 acre tract as follows:

'The restrictions herein contained shall apply only to the property hereby conveyed, and grantor shall not be under any obligation, either express or implied, to subject the remainder of the property which grantor owns in the vicinity to such restrictions or any part thereof.'

The deeds, except the Shearer deed, also contained a provision reserving to the grantor the right to release the restrictions which is as follows:

'Grantor reserves to itself, and its successors, the right to release any or all of the above described restrictions as to any or all of such property.'

Restrictions on the use of property are not favored and when they appear in instruments involving realty they are construed strictly in favor of the grantee and against the grantor, resolving any ambiguity in favor of the free use of the land. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465. Such restrictions to be effective must have a contractual basis 'arising out of a contract imposing on the grantor and the grantee the obligation to observe the restrictions.' 26 C.J.S. Deeds Sec. 162(1), p. 1084.

In the instant case there was no contractual relation which imposed upon both the grantor and the grantees in the deeds in question the obligation to observe the restrictions therein set out. No instrument of dedication indicating an intention to impose restrictions upon all the property involved was executed and filed of record by the common grantor. The restrictions sought to be enforced are found only in the separate deeds as above indicated. Each of the deeds provided that...