Taylor v. McLennan County Crippled Children's Ass'n

• Decision Date: 06 November 1947
• Docket Number: No. 2748.,2748.
• Citation: 206 S.W.2d 632
• Parties: TAYLOR et al. v. McLENNAN COUNTY CRIPPLED CHILDREN'S ASS'N et al.
• Court: Texas Court of Appeals

206 S.W.2d 632

TAYLOR et al. v. McLENNAN COUNTY CRIPPLED CHILDREN'S ASS'N et al.

No. 2748.

Court of Civil Appeals of Texas. Waco.

November 6, 1947.

Rehearing Denied December 18, 1947.

Appeal from District Court, McLennan County; W. M. Harman, Judge.

Suit by W. Lee Taylor and others against McLennan County Crippled Children's Association and others for injunctive relief, prohibitive and mandatory, and for damages. From judgment dismissing suit, plaintiffs appeal.

Judgment affirmed.

Woodrow F. Eason and W. L. Eason, both of Waco, for appellants.

Sleeper, Boynton, Darden & Burleson and D. Y. McDaniel, all of Waco, for appellees.

HALE, Justice.

Appellants, W. Lee Taylor, T. W. Fadal and F. W. Pirelo, sued appellees, McLennan County Crippled Children's Association, a corporation, and J. T. Hooker for injunctive relief, prohibitive and mandatory, and for the recovery of damages, actual and exemplary. The trial court sustained certain special exceptions to appellants' pleadings. Appellants refused to further amend. The court thereupon dismissed the suit and hence this appeal.

In their First Amended Petition filed on April 28, 1947, appellants alleged in substance that they separately owned Lots 7, 8 and 9 in Block 5 of Davidson-Sanger Addition to the City of Waco; that the Crippled Children's Association owned Lots 10 and 11 in the same block; that the use of the lots owned by the Crippled Children's Association was legally restricted to residential purposes so as to prevent the construction or maintenance thereon of a hospital; that Hooker was in process of erecting a hospital building on said Lots 10 and 11 for the Crippled Children's Association in violation of the terms of such restrictions; and that appellees, unless enjoined, would continue in the pursuit of their unlawful enterprise to the irreparable injury and damage of appellants. They set forth in their petition verbatim copies of the written instruments upon which the asserted restrictions were predicated. Such restrictions will hereafter be referred to as follows: (1) The 1924 restrictions, fixed by Davidson-Gorman-Sanger Co. in the original dedication of the Davidson-Sanger Addition; (2) the 1940 restrictions, fixed by Margaret C. Bolton as the owner of certain lots in Davidson-Sanger Addition; and (3) the 1938-1947 restrictions, as evidenced by a zoning ordinance adopted by the City of Waco in 1938 and the amendment thereof as adopted in 1947.

On May 1, 1947, appellees answered the First Amended Petition of appellants with numerous special exceptions, a general denial and certain other pleas in bar. Thereafter, the parties filed additional pleadings on dates as follows: Appellants' Second Supplemental Petition, May 7th; Appellees' Trial Amendment, May 17th; Appellants' Third Supplemental Petition, May 20th; Appellees' Supplemental Answer, May 22nd; and Appellants' Fourth Supplemental Petition, May 23rd. The pleadings thus filed consisted of special exceptions, denials and affirmative allegations of fact which cover 55 pages in the Transcript. Under date of May 7, 1947, the parties signed a written stipulation which was filed in the cause, whereby they agreed that three certain instruments therein referred to had been duly recorded in the McLennan County Deed Records, such instruments including the original plat and dedication of the Davidson-Sanger Addition. On May 14th the court below heard the special exceptions interposed in the various pleadings which had been filed prior to that date. The effect of the order of the court on such exceptions was to strike from appellants' First Amended Petition the allegations of fact therein contained relating to the restrictions of 1924 and 1940, to which appellants excepted. On May 23rd the court acted upon appellees' special exceptions to appellants' Third Supplemental Petition. The effect of the rulings made at that time was to strike from such supplemental pleading the allegations with reference to the invalidity of the amended zoning ordinance adopted by the City of Waco on May 6, 1947. This order also recites that because appellants had refused to amend, their suit was dismissed and they excepted and gave notice of appeal.

Appellants predicate their appeal upon four points, viz.: the error of the court in striking from their First Amended Petition all allegations with reference to (1) the 1924 restrictions and (2) the 1940 restrictions; (3) in striking from their Third and Fourth Supplemental Petitions all of their allegations attacking the 1947 amendment to the zoning ordinance of 1938; and (4) in holding that the 1947 amendment to the original zoning ordinance was valid and binding, and in dismissing their suit.

Appellees say in their counter points that the trial court did not err in striking from appellants' pleadings the portions thereof relating to the alleged restrictions of 1924 or 1940 or those attacking the 1947 amendment to the 1938 zoning ordinance, because it affirmatively appears from such pleadings that at the time the Davidson-Sanger Addition was platted and subdivided in 1924, a general scheme and plan for the over-all development of all lots in said addition was effected in accordance with the provisions of the original dedication instrument; that under the express terms of the dedication instrument of 1924 all lots in Block 5 of said addition were specifically exempted from the restrictions therein contained against use for any purpose other than residence purposes; that Margaret C. Bolton owned less than 75% of all the lots in the Davidson-Sanger Addition at the time she recorded the so-called restrictive instrument of 1940; that the lots so owned by her were not situated contiguous to each other; that the Bolton restrictions of 1940, in so far as they attempted to restrict a part of Block 5, constituted a radical change and alteration of, and were in addition to and violative of, the original general scheme and plan for the over-all development of the properties in said addition as evidenced by the plat and dedication instrument recorded in 1924; that the alleged restrictions of 1940 do not constitute a general scheme or plan for the over-all development of properties similarly situated as therein described, are not universal in their application to such properties, do not impose mutual and reciprocal burdens and benefits on all properties similarly situated, and are not binding on the Crippled Children's Association as the owner of said Lots 10 and 11; that the City of Waco, acting by its proper officials, passed an ordinance on May 6, 1947 amending the 1938 zoning ordinance, thereby placing said Lots 10 and 11 in a district wherein hospital buildings were authorized; and that, since the City of Waco passed the original ordinance of 1938 and the amending ordinance of 1947 in the exercise of its legislative functions, the facts alleged by appellants were wholly insufficient in law to show that the amending ordinance of 1947 is invalid. The substance of the foregoing contentions was embraced in the special exceptions of appellees which the trial court sustained.

In passing upon the points and counter points above set forth, it is the duty of this court to accept as true all affirmative allegations of fact contained in the pleadings of appellants and the agreement of the parties with respect thereto and to confine ourselves to a consideration of the facts thus appearing in the record before us.

It appears that Davidson-Gorman-Sanger Co. owned 21.65 acres of land in 1924 which it caused to be platted and dedicated as Davidson-Sanger Addition to the City of Waco. The agreed plat discloses that said addition was subdivided into 5 blocks containing a total of 107 lots. Blocks 1 to 4, inclusive, were each bounded on the north by Trice Ave. and Blocks 2 to 4, inclusive, were each bounded on the south by Indiana Ave. Block 5 was bounded on the north by Indiana Ave. and on the south by the Providence Hospital property. Blocks 4 and 5 were each bounded on the west by N. 18th St. Block 1 contained 12 lots, all fronting west on N. 16th St. Blocks 2, 3 and 4 each contained 28 lots, 14 lots in each block fronting east on N. 16th, N. 17th and Summit Sts., respectively, and 14 lots fronting west on N. 17th, Summit and N. 18th Sts., respectively. Block 5 contained 11 lots, all fronting north on Indiana Ave. and extending in ascending numerical order from east to west.

The dedication instrument recited in substance that said addition had been platted and the lots therein described were to be sold and conveyed to members of the public under the restrictions therein set forth, such restrictions to be covenants running with the land and to be effective and binding forever upon all future purchasers and owners of said lots or any of them. The restrictions provided that white persons only should own or reside on any of said property; that no residence building should be erected on certain of the lots therein described at a cost of less than the amounts therein designated, such amount as it related to the lots in Block 5 being $3200; and that "no buildings shall be erected or used on any lot in said addition, except in Block 5, for any other purpose than residence purposes, and there shall not be conducted or carried on any merchandise business or the business of selling any commodity on any part of the property in said addition."

We think it is readily apparent that a general scheme and plan for the over-all development of all the land in said addition was thus effected in 1924 in accordance with the provisions of the original plat and dedication instrument and that the provisions of such instrument and deeds of conveyance executed thereunder constituted valid covenants running with the land so as to become effective and binding upon future purchasers of any lot in said addition. Hooper v. Lottman, Tex. Civ.App., 171 S.W. 270; Curlee v. Walker, 112 Tex. 40, 244 S.W. 497; Bethea v....