Witte v. Sebastian
| Decision Date | 30 November 1953 |
| Docket Number | No. 6344,6344 |
| Citation | 278 S.W.2d 200 |
| Parties | W. W. WITTE, Appellant, v. Dr. F. J. SEBASTIAN et al., Appellees. |
| Court | Texas Court of Appeals |
Mayer & Mayer, Dallas, for appellant.
Dick P. Wood, Johannes & Kelsoe, Dallas, for appellees.
This is a suit for declaratory judgment seeking to have a proper construction given certain recorded building restrictions affecting a tract of land designated as Royal Crest Addition in the City of Dallas, Texas. Appellant, W. W. Witte, filed this suit against appellees, Dr. F. J. Sebastian and Mrs. Mary Jane Chambers, together with 25 other named defendants, alleging himself to be the owner of a portion of land in the said Addition and that each named defendant was likewise an owner of a portion of land, respectively, in the said Addition, and seeking to sustain his proposal to divide his 'Lot 1 in Block 1-5500 of Royal Crest Addition in the City of Dallas' into three separate divisions and build separate private dwellings on each division, thus making three dwellings on one lot, although the said previous recorded restrictions provided in part that 'no more than one (1) single private dwelling shall be erected on any lot'.
The case was tried to the court without a jury with all parties appearing, after which a 'take nothing' judgment was rendered against appellant, W. W. Witte, denying him any recovery and validating that part of the restrictions in question. Appellant perfected an appeal to the Dallas Court of Civil Appeals of the Fifth Supreme Judicial District and the same was transferred to this Court by the State Supreme Court in equalizing the dockets.
The record reflects that G. L. DuBose was the sole owner of the entire tract of land in question on May 26, 1947, when he on said date filed a plat of it as Royal Crest Addition, dividing the tract into four different blocks with 59 separate lots contained therein, establishing streets and alleys fully shown therein and recorded the same in Volume 11, Page 221 of the Plat Records of Dallas County. Thereafter on June 5, 1947, G. L. DuBose executed and filed restrictions governing the use of Royal Crest Addition 'as per map and plat thereof recorded in Volume 11, Page 221 of the Map Records of Dallas County' which instrument imposed and placed upon each of the lots in the said Addition certain restrictions which were covenants running with the land and some of which are later herein copied and discussed. The said restrictions were likewise recorded in Volume 11, Page 222A-B-C of the Plat Records of Dallas County. Subsequently a majority of the lots in Royal Crest Addition were sold to individuals, who have placed improvements thereon. In March of 1951 appellee, Dr. F. J. Sebastian, bought Lot 4, Block 2-5500, Royal Crest Addition, known as 6044 Royal Crest Drive, which is across the street from appellant's lot in question. Doctor Sebastian paid $4,000 for the said lot and constructed thereon his family residence at a cost of approximately $63,000. Appellee, Mrs. Mary Jane Chambers, bought Lot 2 in Block 1-5500, Royal Crest Addition, which is adjacent to appellant's lot in question. On August 26, 1952, appellant, W. W. Witte, bought his lot in question from Wm. J. Bond. On the following day, August 27, 1952, without the knowledge or consent of appellee, Dr. F. J. Sebastian, a replat of Lot 1, Block 1-5500, Royal Crest Addition, appellant's lot here in question, was filed in Volume 18, Page 413 of the Plat Records of Dallas County by Wm. J., Bond, thereby dividing the said lot into three separate divisions, designated as 'Lots 1-A, 1-B and 1-C', contrary to and inconsistent with the original restriction provisions previously filed by G. L. DuBose.
Thereafter on October 10, 1952, appellant filed this suit, alleging himself to be owner of the said 'Lots 1-A, 1-B and 1-C' of the said Block in the said Addition and that the said lots were shown 'as Lot 1' of the said Block in the said Addition by the (G. L. DuBose) map and plat filed and recorded in Volume 11, Page 221 of the Dallas County Plat Records; that each of the named defendants owned lots, respectively, in the Royal Crest Addition and a controversy had arisen between himself and the named defendants concerning his (appellant's) proposal to erect three separate dwellings on the lot he purchased from Bond, the same being Lot 1, Block 1-5500 of the said Addition, the said three proposed dwellings to be built one on each lot (that is 'Lots 1-A, 1-B and 1-C') as more recently replatted by Bond. Appellant further alleged, in effect, that the dwellings would all be erected in conformity with the provisions and restrictions set out in the DuBose map and plat originally filed and recorded except that he proposes to build three dwellings on one lot according to the DuBose plat and map, rather than the limit of one dwelling therein specified. However, he likewise alleged, in effect, that there were no provisions in the DuBose restrictions that prohibited replatting of his said Lot 1 for the purpose of building more than one dwelling thereon.
Appellee, F. J. Sebastian, answered, joining issues with the appellant and pleading the contents of the DuBose restrictions in bar of appellant's proposal to build three dwellings on one lot across the street from the Sebastian home. The case was tried with the result previously stated and the trial court made findings in its judgment consistent with its disposition made of the case. In his appeal appellant presents three points of error raising only the one material issue previously herein stated.
The DuBose restrictions are too lengthy to reproduce here in full. We shall therefore set forth only the material portions thereof as follows to wit:
'I G. L. DuBose, * * * do hereby impose and place, and by these presents have imposed and placed, upon each of said lots in the following described Restrictions, each of which shall be a covenant running with the land as follows:
To continue reading
Request your trial
-
Farmer v. Thompson
...146 S.W.2d 819; 26 C.J.S., Deeds, § 171, p. 577; Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 54 A.L.R. 837. In Witte v. Sebastian, Tex.Civ.App., 278 S.W.2d 200, the owner of a lot burdened with the restriction that only one residence could be built thereon, filed a replat dividing the ......
-
Tanglewood Homes Ass'n, Inc. v. Feldman
...relief is inappropriate. See Farmer v. Thompson, 289 S.W.2d 351, 355 (Tex.Civ.App.-Fort Worth 1956, writ ref'd n.r.e.); Witte v. Sebastian, 278 S.W.2d 200, 203 (Tex.Civ.App.-Amarillo 1953, no writ). Both cases hold that a single homeowner cannot unilaterally modify deed restrictions by obta......
-
Tanglewood Homes Ass'n, Inc. v. Feldman
...relief is inappropriate. See Farmer v. Thompson, 289 S.W.2d 351, 355 (Tex. Civ. App.—Fort Worth 1956, writ ref'd n.r.e.); Witte v. Sebastian, 278 S.W.2d 200, 203 (Tex. Civ. App.—Amarillo 1953, no writ). Both cases hold that a single homeowner cannot unilaterally modify deed restrictions by ......
-
First State Bank of Corpus Christi v. James
...other lot owner. Plaster v. Stutzman, 8 S.W.2d 750, 753 (Tex.Civ.App., Galveston, 1928, n.w.h.) and the cases therein cited; Witte v. Sebastian, 278 S.W.2d 200 (Tex.Civ.App., Amarillo, 1953, n.w.h.). Appellee, a lot owner in Del Mar Addition, was authorized to bring suit. There is ample evi......