Terrell Hills Baptist Church v. Pawel

• Decision Date: 04 January 1956
• Docket Number: No. 10360,10360
• Citation: 286 S.W.2d 204
• Parties: TERRELL HILLS BAPTIST CHURCH et al., Appellants, v. Tom E. PAWEL et al., Appellees.
• Court: Texas Court of Appeals

Page 204

286 S.W.2d 204

TERRELL HILLS BAPTIST CHURCH et al., Appellants, v. Tom E. PAWEL et al., Appellees.

No. 10360.

Court of Civil Appeals of Texas, Austin.

Jan. 4, 1956.

Ralph Cadwallader, Oliver & Oliver, San Antonio, for appellants.

Davis, Clemens, Knight & Weiss; George H. Spencer and F. Nolan Welmaker, San Antonio, for appellees.

GRAY, Justice.

Appellees, individually and as representatives of a class, brought this suit against appellants Terrell Hills Baptist Church, a corporation, and its trustees. Wilshire Development Company was also a party to the cause but it is not affected by the judgment rendered and is not a party here. Appellees and the church own lots or tracts of land in Wilshire Village, a subdivision of the City of San Antonio and the purpose of the suit was to enforce by injunction restrictive covenants contained in the title to said lots restricting their use to residential purposes only.

Wilshire Development Company was the subdivider and it appears that all of the property in question was a part of a tract purchased by the Development Company for a residential subdivision. The subdivision was platted, the plats were recorded in the deed records of Bexar County and the lots were made subject to a mutual restrictive covenant which the parties agree is substantially as follows:

'No lot or building within the subdivision shall be used or occurred for other than private residence purposes.'

The church was issued a character as a Texas corporation February 4, 1955. By deed dated February 14, 1955, and filed for record February 24, 1955, Wilshire Development Company conveyed to it the property in question here which property was unimproved. This deed recited:

'Provided, however, that this conveyance is made subject to conditions and restrictions as contained in instruments recorded in Volume 3133 at page 73 and in Volume 3367 at page 409 of the Deed Records of Bexar County, Texas, if still effective.'

The recorded plats contained provisions substantially as follows:

'These covenants are to run with the land, and shall be binding upon all persons claiming under them until January 1, 1975, at which time said covenants shall be automatically extended for successive periods of ten years, unless, by vote of the majority of the then owners of the lots, it is agreed to change said covenants in whole or in part. The ownership of each of shall be entitled to one vote.'

At the time this suit was filed the church had begun construction of a church and school building on the land acquired by it. On March 4, 1955, appellees filed their first amended original petition wherein they prayed that further construction be enjoined. On that date the court set for hearing on March 11, 1955, appellees' application for a temporary injunction. At this hearing and by agreement of the parties further construction was enjoined until a further order of the court.

At a nonjury trial a judgment was rendered adjudging the restrictive covenants above mentioned valid and effective as to all parties to this cause and perpetually enjoining appellants from using the land for purposes other than residential.

Findings of fact and conclusions of law were not requested and none were filed.

Appellants say that the trial court's judgment should be reversed because: (1) the facts show that appellees waived their right to injunction, are barred by laches, and by their own conduct are estopped; (2) the restrictive covenants are void and contrary to public policy, and (3) the undisputed evidence shows that it was the general custom prevailing that notwithstanding such restrictive covenants church and school houses were permitted and that such custom became a part of the contract.

In the early part of October, 1954, the church through its pastor began a religious canvass of Wilshire Village; the homes there were visited and the occupants of the homes were informed that a church would be built on the site in question and that it was hoped the construction could begin in the early part of the following January. It was not determined whether the persons contacted in the homes were the owners of the property or whether they occupied the same in some capacity other than as owner. The restrictive covenants were not discussed and no inquiry was made if there were objections to the construction of the church. Appellants also placed a sign on the site of the proposed construction which read:

'Future Home Of

Terrell Hills

Baptist Church

Dr. John D. Brown

Pastor

Meeting temporarily at

1003 Rittiman Road

Sam Houston Village

Shopping Center'

The proposed construction of the church on the site in question was also advertised by hand bills, newspapers, local radio announcements and street parades.

On February 20, 1955, the site was graded and leveled; on the 23rd holds for concrete piers were bored and on the 26th and on the 28th the piers were pourced. On March 2nd or 3rd appellants were advised by their attorney that appellees were threatening to file suit to enforce the restrictive covenants. The construction was continued until March 11th when the above mentioned injunction issued. The contractor of the job testified that a large portion of the construction was done after March 2nd. The pastor of the church testified that:

'We have poured $600 and some odd dollars into the ground there. And the-for instance the ducts and the air conditioning units, the ducts will not by any good to anyone else, we have got to buy them. The tile is up there and it just hadn't been paid for, but the bill has just come. There is $15,000.00 that we will have to pay.'

This witness said there was also about $700 worth of plumbing put in the construction. He also said that when notice of objections was first received most everything had been ordered or was on the ground.

Appellants' position here is explained, at least in partBy the following question addressed to the pastor and his answer:

'Q. Would you have built that building and spent that money if you had had any timely objection and protest made to you?

'A. That is why we were so careful. That is exactly it. We knew it was restricted, but we knew it was the custom and usage. Why, five blocks away, the little Episcopal church has built and it was restricted.'

The witness did not place the Episcopal Church in Wilshire Village and the president of the Development Company testified that nothing other than residences were there. However under the evidence here the location of this church would be immaterial. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506.

In Curlee v. Walker, 112 Tex. 40, 244 S.W. 497, 498, the Court said:

'The correct rules that govern covenants of the character set out in the deeds to this restricted district are well stated by Judge Higgins in the case of Hooper v. Lottman (Tex.Civ.App.) 171 S.W. 270, as follows:

"The most familiar cases in which courts of equity have upheld the right of owners of land to enforce covenants to which they were not parties are those in which it has appeared that a general building scheme or plan for the development of a tract of land has been adopted, designed to make it more attractive for residential purposes by reason of certain restrictions to be imposed on each of the separate lots sold. This forms an inducement to each purchaser to buy, and it may be assumed that he pays an enhanced price for the property purchased. The agreement therefore enters into and becomes a part of the consideration. The buyer submits to a burden upon his own land because of the fact that a like burden imposed on his neighbor's lot will be beneficial to both lots. The covenant or agreement between the original owner and each purchaser is therefore mutual. The eqity in this particular class of action is dependent as much on the existence of the general scheme of improvement or development as on the covenant, and restrictions which contemplate a general building plan for the...