Chandler v. Darwin

281 S.W.2d 363, 1955 Tex. App. LEXIS 1991

• Court: Court of Appeals of Texas
• Decided: July 15, 1955
• Docket: 14962
• Status: Published

Opinions

PER CURIAM.

This suit was commenced by Darwin and numerous other Lot owners (some also residents) of Reavilon No. 4, and Addition to the City of Greenville, Texas, against the Trustees of the Reavilon Church of Christ, seeking immediate restraint and on final trial a permanent injunction prohibiting the erection of a building to be used as a church on Lot 16, Block 3 of said Addition, of which said defendants were owners. After due hearing, issuance of temporary injunction was ordered by District Judge Berry as prayed, conditioned upon bond of $500 “pending final hearing and determination of this cause *' * *.” Defendants thereafter perfected this appeal, in brief and through various points charging insufficiency in law of the covenants and restrictions as pled and in evidence.

These restrictions, placed in evidence over objection of appellants, were contained in an instrument of date March 16, 1948, of record in Book 4^8, p. 479, Deed Records of Hunt County, the first paragraph reading: “That Esma Reavis, individually and as sole heir of H. E. Reavis, deceased; and New Reavilon, Inc., a Texas Corporation, being owners of the property described in Reavilon No. 4, an Addition to the City of Greenville, Texas, do hereby adopt these covenants and restrictions, which are hereby made covenants running with the land and which shall apply and be binding upon any purchaser of any of the above' described property, his heirs, devises, administrators, successors and assigns as follows:”. Further sections, material here, are as follows: “(1) All of the lots in said tract shall be residential lots and no structure shall be erected thereon other than single, duplex or multi-unit.? dwellings, which shall in no event exceed two stories in height, and’ all of said lots shall have a square foot area of at'least 6,000 feeti (2) No building shall be erected nearer to the front property line than 25 feet and no building shall be erected nearer than 5 feet to the property line except that garages and other out-buildings may be nearer than 5 feet to the side line if located upon the rear ⅜, of the lot. For the purpose of definition, it is agreed that any covered portion of the house shall be the determinatas to the location of the set back as herein provided. * * * (4) No trailer, basement, tent, shack, barn or garage or other out-building erected on the tract shall be at any time used as residence, temporarily (or) permanently, nor shall any residence of a temporary character be permitted. (5) Each residence as erected on any lot in said addition shall have a minimum of 700 sq. ft. exclusive of all porches, garage, terraces, lodges, outhouses or unfurnished rooms, whether the same are attached, detached or built into.” Also admitted over objection was the dedication of Reavilon Addition, dated March 16, 1948, and of record in Vol. 478, p. 478, Deed Records, Hunt County, and Plat of the Addition, filed in Book 400, p. 18, same deed records. The Plat bore the notation “See Deed Record” in handwriting of a person not identified.

The deed of appellant Trustees to their Lot did not embody aforesaid restrictions, simply making reference to Plat of the Addition; though W. C. Weaver, church pastor, admitted to knowledge thereof before the property was bought.

. Aside from points complaining of above erroneous admissions of evidence, appellants claim error: (1) “In not holding said alleged restrictions invalid due to an inadequate description of the real property to which said alleged restrictions were to apply.” (3) “In holding said alleged restrictions enforceable against a church and/or against a dwelling to be used as a church for the reasons that said restrictions are vague, indefinite, ambiguous, do not restrict the use of the real property, and no general building plan or scheme is established.” (5) “In issuing a temporary injunction, as there was no basis therefor, in that the uncontradicted evidence was that damages could be ascertained, no irreparable injury was shown, and the granting of such temporary injunction gave appellees all the relief they were seeking on final hearing.” (6) “Building restriction against a church in the State of Texas is contrary to public policy and thus is invalid under the laws of this State.” It will be noted that in the main, the points advanced go to the merits of this controversy, and relevant thereto aré the following well established rules: (1) On all appeals from interlocutory orders granting or refusing a writ “the sole question is whether the trial court abused its discretion in entering the order appealed from”; 24 T.J., p. 313. (2) No abuse is shown if petitioner alleges a cause of action which the evidence adduced tends to support; Southwestern Greyhound Lines v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263. Otherwise stated, where pleading and evidence present a case of probablé right and probable injury to that right, the trial court is clothed with broad discretion in causing issuance of a writ of temporary injunction and its orders thereon will be reversed only on showing of clear abuse. Transport Co. of Texas v. Robertson Transports, Tex.Sup., 261 S.W.2d 549. (3) “Contract and proprietary rights grow out of covenants and conditions in instruments of title, and injunctions to protect them are proper. Restrictive covenants are enforceable by injunction in varying circumstances, and temporary injunctions are proper in such cases in order to preserve the status quo while the applicability of a disputed restriction is being tried and determined.” 24 T.J., p. 47. See also Anderson v. Rowland, 18 Tex.Civ.App. 460, 44 S.W. 911; Lowrance v. Woods, 54 Tex.Civ.App. 233, 118 S.W. 551; Crump v. Perryman, Tex.Civ.App., 193 S.W.2d 233.

Application of these familiar principles to the facts at hand sufficiently establishes the right of petitioners to the in-junctive order in question. Appellants’ claim of errors in admission of evidence was harmless in each instance because (a) they have admitted to a knowledge of the restrictions prior to acquisition of the property and (b) the words “See Deed Record”, endorsed on exhibit C (the Plat) even if mistakenly admitted, would not conceivably have changed the result of this, a nonjury trial. We must reserve a discussion of the remaining points to an appeal following trial to the merits. The judgment under review is accordingly affirmed.