Home/Court of Appeals of Texas/Lebo v. Johnson

Lebo v. Johnson

349 S.W.2d 744, 1961 Tex. App. LEXIS 1945
CourtCourt of Appeals of Texas
DecidedSeptember 6, 1961
Docket13752
StatusPublished
Cited by22 cases

This text of 349 S.W.2d 744 (Lebo v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lebo v. Johnson, 349 S.W.2d 744, 1961 Tex. App. LEXIS 1945 (Tex. Ct. App. 1961).

Opinion

MURRAY, Chief Justice.

This suit was brought by E. S. Johnson and some five others as owners of several lots in the City of Terrell Hills, Bexar County, Texas, fronting on U. S. Highway No. 81, also known as Austin Highway, as a class action, against William Lebo and some seventeen other named persons who *746 own property in Terrell Hills, in their individual capacity and as representatives of all other property owners in Terrell Hills, to cancel existing property restrictions limiting the property in Terrell Hills to private single family residential use, alleging changed conditions, violations of the restrictions, and waiver and abandonment by defendants of the restrictions. The trial was before the court without a jury and resulted in judgment for plaintiffs, cancel-ling the restrictions as to their property, and defendants have perfected this appeal.

No findings of fact or conclusions of law were requested or made, therefore implied findings must be indulged in favor of the judgment rendered, when supported by the evidence.

Appellants’ first contention is that the judgment of the trial court is not supported by any competent evidence, or is so against the overwhelming weight and preponderance of the credible evidence, as to be manifestly wrong and unjust.

■ The property within Terrell Hills Subdivision is subject to restrictions, among others, limiting its use to single family private residences. The subdivision was platted, the restrictions formulated, both were duly recorded, and the lots placed on the market in 1929. All lots were thereafter sold subject to these restrictions and none were sold without them. In 1933, Bexar County purchased a right-of-way for a relocation of the Austin Highway, and the State built U. S. Highway 81 thereon, cutting off a small triangle at the northwest corner of the subdivision, and also taking portions of the most northern tier of lots in the subdivision. This highway is now 120 to 130 feet wide, and is one of the most heavily traveled traffic arteries in the City of San Antonio. It is actually a part of a national highway, running from Laredo through San Antonio, Waco, Fort Worth, and on to the Canadian border. The appel-lees purchased their respective properties in the following years: E. S. Johnson, 1955; Dan Oppenheimer, 1941; Gloria R. •Oppenheimer, 1940; Beulah R. Price, 1955; Humphrey R. Price, 1955; C. F. Sims, doing business as Sims Lumber Company, 1949; which was many years after the relocation of the Austin Highway, now known as U. S. Highway 81.

Appellees bought their property with the restrictions shown in their respective deeds, and with full knowledge of the existence of most of the conditions of which they now complain.

Appellants and other persons testified (1) that they purchased, constructed homes, or loaned money upon appellants’ property, after investigation and in reliance upon the restrictions; (2) that the destruction of restrictions, and the erection of business structures as requested by appellees, would seriously affect the beneficial use of appellants’ property, and (3) that no business structures of any kind had ever been erected in the Terrell Hills Subdivision.

There was evidence that the building of business houses on appellees’ lots fronting along Austin Highway would not damage or reduce the value of appellants’ property, if some modern shopping center was erected on the property. However, in cancelling restrictions the court must assume that the premises will be devoted to the most noxious permissible use. Perkins v. State, Tex.Civ.App., 150 S.W.2d 157; Hill v. State, Tex.Civ.App., 289 S.W.2d 801. It is undisputed that the traffic has increased on Highway 81, and is now very, very heavy. There is hope that the through traffic and the downtown traffic will be diverted when International Highway 35 is completed through San Antonio, but the Austin Highway, as now located, will in all probability always be a heavily traveled highway.

*747

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eis Development II, LLC v. Buena Vista Area Association, Lance W. Hall and Heather R. Hall, Jason Paul Smithey, David W. Molengraaf and Kimberley K. Molengraaf, Alexander E.W.J. Schindler and Angela R. Schindler, as Individuals
Texas Supreme Court, 2025
EIS Development II, LLC v. Buena Vista Area Association, Lance W. Hall and Heather R. Hall, Jason Paul Smithey, David W. Molengraaf and Kimberley K. Molengraaf, Alexander E.W.J. Schindler and Angela R. Schindler, as Individuals
Court of Appeals of Texas, 2023
EWB-I, LLC v. PlazAmericas Mall Texas, LLC
527 S.W.3d 447 (Court of Appeals of Texas, 2017)
Davis v. Canyon Creek Estates Homeowners Ass'n
350 S.W.3d 301 (Court of Appeals of Texas, 2011)
Luis Davis, Trustee of the Davis Family Blanco Road Property Trust v. Canyon Creek Estates Homeowners Association
Court of Appeals of Texas, 2011
Asociación Pro Bienestar Vecinos Urbanización Juan B. Huyke, Inc. v. Banco Santander de Puerto Rico
157 P.R. Dec. 521 (Supreme Court of Puerto Rico, 2002)
Asoc. Pro Bienestar Vecinos, Etc. v. Banco Santander De P.R.
2002 TSPR 97 (Supreme Court of Puerto Rico, 2002)
Oldfield v. City of Houston
15 S.W.3d 219 (Court of Appeals of Texas, 2000)
Traeger v. Lorenz
749 S.W.2d 249 (Court of Appeals of Texas, 1988)
Camelback Del Este Home-Owners Ass'n v. Warner
749 P.2d 930 (Court of Appeals of Arizona, 1987)
Independent American Real Estate, Inc. v. Davis
735 S.W.2d 256 (Court of Appeals of Texas, 1987)
Asociación de Vecinos de Villa Caparra, Inc. v. Iglesia Católica
117 P.R. Dec. 346 (Supreme Court of Puerto Rico, 1986)
Sharpstown Civic Ass'n v. Pickett
667 S.W.2d 840 (Court of Appeals of Texas, 1984)
Underwood v. Webb
544 S.W.2d 187 (Court of Appeals of Texas, 1976)
Ireland v. Bible Baptist Church
480 S.W.2d 467 (Court of Appeals of Texas, 1972)
Ortiz v. Jeter
479 S.W.2d 752 (Court of Appeals of Texas, 1972)
First State Bank of Corpus Christi v. James
471 S.W.2d 868 (Court of Appeals of Texas, 1971)
Peterson v. Greenway Parks Home Owners Ass'n
408 S.W.2d 261 (Court of Appeals of Texas, 1966)
Simon v. Henrichson
394 S.W.2d 249 (Court of Appeals of Texas, 1965)
Stout v. Rhodes
373 S.W.2d 94 (Court of Appeals of Texas, 1963)

Cite This Page — Counsel Stack

Bluebook (online)
349 S.W.2d 744, 1961 Tex. App. LEXIS 1945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lebo-v-johnson-texapp-1961.