Zent v. Murrow, 11878

Decision Date16 February 1972
Docket NumberNo. 11878,11878
Citation476 S.W.2d 875
PartiesRonald B. ZENT et al., Appellants, v. Nancy P. MURROW et al., Appellees.
CourtTexas Court of Appeals

Baker, Watkins, Ledbetter, Hayden & Ramsey, George E. Ramsey, III, Austin, for appellants.

Jay B. Wilkins, Jr., Austin, for appellees.

O'QUINN, Justice.

The appellees, as owners of five residential lots restricted to single family dwellings, brought this lawsuit to enjoin appellants, owners of adjacent lots, from erecting duplex residences on their property.

All of the lots involved were conveyed originally by the subdividers in a single deed to a predecessor in title of appellees and appellants with the same covenants and restrictions applying to all seven lots.

After a hearing before the court without a jury, the trial court entered judgment permanently enjoining appellants from building and maintaining duplex dwelling units, and any other structure in violation of the restrictive covenants, on their property.

We affirm judgment of the trial court.

The lots involved are part of Walnut Hills, Section Four, consisting of 42 lots, a duly recorded subdivision to the City of Austin.

Appellants, operating under the name of Omega Investment Company, acquired lots 39 and 40, Section Four, of Walnut Hills subdivision in January, 1969, and shortly thereafter filed an application with the City of Austin for resubdivision of the two lots, to be designated lots 39A, 40A, and 40B. The application for resubdivision was approved by the City of Austin in September, 1969, and the revised plat as to these lots was placed of record in Travis county soon thereafter.

The original subdivision plat of Walnut Hills, Section Four, which was approved and placed of record in Travis county in 1952, contained no restrictions of any kind, nor did it contain a declaration that restricted the size of lots. The mere filing of a map showing lots, but without restricting the size of lots, did not amount to a prohibition upon resubdivision of appellants' two lots into three smaller lots. MacDonald v. Painter, 441 S.W.2d 179, 184 (Tex.Sup.1969).

The deed by which the subdividers conveyed title to appellees' five lots and appellants' two original lots, before resubdivision, a conveyance to Allied Chain Link Fence Company, contained certain 'conditions and restrictions,' the first of which recited:

'The above described property shall be used for residence purposes only. No structure shall be erected, altered, placed, or permitted to remain on any residential building plot in 'Walnut Hills, Section Four,' . . . other than one detached single family residence.' (Omitted words refer to lots in 'Section Five' not involved in this lawsuit but conveyed in the same deed).

The tenth paragraph of the conditions and restrictions stated the life of the covenants and provided for their modification:

'These covenants, conditions, and restrictions shall be binding on the grantee, its successors and assigns, until January 1, 1970, and thereafter for successive periods of ten years, unless by a majority vote of the then owners of 'Walnut Hills, Section Four,' said covenants, conditions, and restrictions which apply to said 'Walnut Hills, Section Four,' are revoked or amended . . ..'

Appellants in November of 1970 sought to modify the restrictions as to their lots as resubdivided by an instrument purportedly executed by 'a majority of the owners of Walnut Hills, Section Four, and the owners of a majority of the lots in Walnut Hills, Section Four,' insofar as the restrictions apply to appellants' lots, '. . . so as to permit construction of duplex dwelling units on each and all of the lots' owned by appellants. That instrument was placed of record and introduced in the trial court.

After this lawsuit was filed, appellants sought a second time to modify the restrictions. In an instrument purportedly executed by 'a majority of the owners in 'Walnut Hills, Section 5," an attempt was made 'to revoke any and all restrictions insofar as said restrictions may prohibit construction of duplex dwelling units on any lot in 'Walnut Hills, Section 4' . . .' (Emphasis added). This instrument, dated March 24, 1971, was recorded and later placed in evidence at the trial.

The trial court made and filed findings of fact and conclusions of law. The court found that in November of 1970 appellants '. . . attempted to change the restrictions in Walnut Hills, Section Four, insofar as they affected Lots 40, 40A and 39A, so that said lots might be used for one or more duplex dwelling units' and concluded as a matter of law that the restrictions '. . . are valid and existing restrictive covenants running with the land and covering . . .' the lots owned by appellees and the lots owned by appellants.

Neither instrument by which appellants sought to modify the restrictions in Walnut Hills, Section Four, was effective to revoke or amend the restrictions to permit construction of duplex dwelling units on appellants' lots.

The first instrument did not purport to alter the restrictions on all lots in Section Four, but was limited in its scope to the two original lots owned by appellants. In jurisdictions where the question has been considered the rule appears established that '. . . any action taken by property owners to alter, extend, or revoke existing restrictions must apply to all of the properties which are subject to them.' See 4 A.L.R.3rd 570, 582.

The language employed by the subdividers of Section Four shows an intent to establish a general plan applicable to the whole section. A rule that would permit the majority of the lot owners to alter or revoke the restrictions as to a few lots only, and to continue the covenants as to all other property in the section, would invite foreseeable mischiefs not within the original purposes of the subdividers. The most obvious of such mischiefs to result are uncertainties and possible discriminations.

The second attempt to amend the restrictions in Section Four was by a purported majority of the lot owners in Section Five. The subdividers plainly provided in the deed to the common predecessor in title of both appellants and appellees that the restrictions would '. . . be binding on the grantee, its successors and assigns, unless, by a majority vote, the then owners of Section Four . . .' revoked or amended the restrictions '. . . which apply to said 'Walnut Hills, Section Four' . . .' The grantors and subdividers made no provision for lot owners in another section to revoke or alter the restrictions applying to Section Four.

In Loving v....

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21 cases
  • Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n
    • United States
    • Court of Appeals of Texas
    • July 5, 2017
    ...those who did not participate in the execution of the document that allegedly manifest the waiver or inconsistent position?In Zent v. Murrow , 476 S.W.2d 875, 877 (Tex. Civ. App.—Austin 1972, no writ), the plaintiffs, owners of five residential lots subject to a restrictive covenant permitt......
  • Dempsey v. Apache Shores Property Owners Ass'n, Inc.
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    ...then existing were so extensive and material as to reasonably lead to the conclusion that the restrictions had been abandoned. Zent v. Murrow, 476 S.W.2d 875, 880 (Tex.Civ.App.1972, no writ). Among the factors to be considered are the number, nature and severity of the existing violations, ......
  • Maatta v. Dead River Campers, Inc.
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    ...be made must affect all of the described property." See, also, Riley v. Boyle, 6 Ariz.App. 523, 434 P.2d 525 (1967), Zent v. Murrow, 476 S.W.2d 875 (Tex.Civ.App., 1972), Valdes v. Moore, 476 S.W.2d 936 (Tex.Civ.App., 1972), Warren v. Del Pizzo, 46 Or.App. 153, 611 P.2d 309 (1980), and the c......
  • Walton v. Jaskiewicz
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    ..."[n]o changes may be made with respect to any one lot without affecting all the others subject to the restrictions"); Zent v. Murrow, 476 S.W.2d 875, 878 (Tex.Civ.App.1972) (rejecting any rule which "would permit the majority of the lot owners to alter or revoke the restrictions as to a few......
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