Stewart v. Welsh, 8172.
| Citation | 178 S.W.2d 506 |
| Decision Date | 02 February 1944 |
| Docket Number | No. 8172.,8172. |
| Parties | STEWART v. WELSH. |
| Court | Supreme Court of Texas |
Petitioner N. C. Stewart, the owner of two lots in Del Mar addition to the City of Corpus Christi on which he resided, sued respondent, who owned and resided on an adjoining lot and part of another lot, to compel the removal by mandatory injunction of a fence that respondent had built on the line between his property and the property of petitioner. The Court of Civil Appeals reversed the trial court's judgment, which was for petitioner, and rendered judgment that he take nothing by his suit, holding in its opinion, 178 S.W.2d 581, that petitioner waived his right to enforce a restrictive covenant against respondent by acquiescing in a similar violation by another on adjoining property.
On December 2, 1925, A. L. Wright, as trustee for the owner, by written instrument duly executed and recorded, created a general plan for the development and improvement of Del Mar addition to the City of Corpus Christi as a restricted residence district, imposing elaborate limitations and restrictions upon the property in the district, to extend to all persons acquiring lots or parts of lots, and to their heirs, assignees, devisees and lessees. The instrument, designated a declaration of limitations, provides that reference shall be made to it in all contracts and deeds affecting property in the addition and that all purchasers or subsequent owners shall be charged with due notice of the full contents of the same. It further provides that any party violating any limitation, condition or restriction shall become subject to legal injunction by A. L. Wright, trustee, or by the owner of any lot in the addition.
We quote two paragraphs from the instrument:
Del Mar is a large addition consisting of forty-five blocks, a number of which contain as many as thirty lots. Block 9, in which petitioner's and respondent's properties are situated, is divided into eight lots, each 57.38 by 135 feet in dimensions. Lots 1 and 2, owned by petitioner, face south, lot 1 being on the corner, and lots 6 and 7 face north. Respondent owns all of lot 7 and the east 34.88 feet of lot 6. The south line of lot 7 coincides with the north line of lot 2 and the south line of lot 6 with the north line of lot 3. There are no alleys in the blocks, but the area ten feet in width through the middle of each block, or five feet along both sides of the central dividing line running through each block, affected by the franchise right or easement, is indicated on the plat by dotted lines.
Petitioner acquired his lots through deed dated February 28, 1936, which expressly stated that the conveyance was subject to the conditions, limitations and restrictions set forth in the declaration of limitations by A. L. Wright, identifying that instrument by reference to the book and page where it was recorded. Respondent's lot and part of an adjoining lot were conveyed to him by deed dated June 20, 1939, containing a like reference to the instrument executed by Wright.
In March, 1941, respondent Welsh began the construction of a fence along the line dividing his lot 7 from petitioner's lot 2, and being along the center of the area subject to the franchise right or easement. He completed the fence in June or July of the same year. The fence is made of posts set in the ground, rails or runners and pickets, and is seven feet in height. It connects with like fences along the sides of respondent's property, thus placing within his enclosure all of the five foot area reserved across the rear of his lots. While the fence was being built petitioner objected to its construction in that location. The posts had then been set and the top railing nailed on them. After the fence was completed petitioner wrote respondent a letter asking for a conference for the purpose of procuring an agreement to put the fence in a proper place. The fence was completed where it was begun and has not been moved.
The reserved area along the rear of the lots in block 9 has been used for the installation and maintenance of water, sewer, gas, electric and telephone lines to serve the property owners. The exact location of the water, gas and sewer lines is not shown, but there is testimony that they are very nearly along the center of the area. The telephone poles are along the south part of the area outside of respondent's fence. The poles for light and power lines are on the north part of the area and within the enclosure made by respondent's fence.
In our opinion the trial court correctly concluded that the fence built by respondent is a "structure" within the meaning of the restriction imposed by the declaration of limitations. By paragraph 27 a franchise right or easement is created in the strip of land ten feet in width along the rear of the lots for the use of public utilities and utility companies, with the right of ingress and egress, and paragraph 28 provides that "no house or structure of any kind shall be built on said reservation running through said blocks."
The word "structure" is often used...
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...structures. In restrictive covenants, the word "structure" may be used in a broad sense or in a restricted one. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944); DeNina v. Bammel Forest Civic Club, Inc., 712 S.W.2d 195, 198 (Tex.App.-Houston [14th Dist.] 1987, no writ). The broad ......
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