Lenzi v. Colberg

13 Tenn. App. 535, 1931 Tenn. App. LEXIS 92
CourtCourt of Appeals of Tennessee
DecidedMay 8, 1931
StatusPublished
Cited by3 cases

This text of 13 Tenn. App. 535 (Lenzi v. Colberg) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lenzi v. Colberg, 13 Tenn. App. 535, 1931 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1931).

Opinion

SENTER, J.

The original bill was filed in this cause by complainant against the owners of certain lots sitiiated in the Chickasaw Gardens Subdivision in the City of Memphis. The bill alleges in substance that complainant is the owner of a certain lot or parcel of real estate, situated on the west side of Outlet Avenue in the city of Memphis, which avenue is immediately west of and adjoining the Chickasaw Gardens Subdivision; that at the time said Chickasaw Gardens Subdivision was laid out as a proposed subdivision outside of but near the city limits of the city of Memphis, that it became necessary for the owners of the Chickasaw Gardens Subdivision to submit the proposed subdivision to the city Planning Commission of the city of Memphis, and to obtain the approval of said Commission before the same could be recorded and the subdivision made; that the lots in said Chickasaw Gardens Subdivision, according to the subdivision plan as proposed did not front on Outlet Avenue, but the tier of lots on the west side of said subdivision were shown to back up to the east line of Outlet Avenue; that the property owners owning the various lots on the west side of Outlet Avenue filed a protest with the City Planning Commission, protesting against the lots backing up to Outlet Avenue. The bill further alleges that when this protest was filed, the owners and promoters of the proposed Chickasaw Gardens Subdivision had a meeting with the City Planning Commission and entered into an agreement with the protesting property owners on the west side of Outlet Avenue and with the City Planning Commission, by which it was agreed that there would be located a twenty-five foot setback line and that the rear end of the lots running back to Outlet Avenue could not be used by those buying lots in the proposed subdivision for outhouses, garages, or servants houses; and that the high iron fence which enclosed the property of the Chickasaw Gardens Subdivision, and which ran along the east margin of Outlet Avenue would not be taken down, but the same would be beautified *537 by the planting of ornamental shrubs, flowers, etc., along said iron fence, and that this agreement was made on behalf of the Chickasaw Gardens Subdivision owners to induce the protesting propérty owners on tbe west side of said Outlet Avenue to withdraw the protest and in order to have the City Planning Commission approve the proposed plan for the subdivision.

The bill also alleged that certain of the property-owners who had purchased lots adjoining the east side of Outlet Avenue in the Chickasaw Gardens Subdivision had violated the restrictions and limitations in the use of said lots by cutting openings in the iron fence; along the east side of Outlet Avenue and by erecting servants’ houses and garages near the east line of Outlet Avenue and within the twenty-five foot set-back line, and had otherwise violated the agreement; and alleging that other of the defendants were proposing to violate the agreement by erecting similar outhouses, etc., within said tw'enty-five foot set-back line, to the detriment and damage of the property on the west side of Outlet Avenue, and making of same an alley in place of a street. The prayer of the bill sought injunctive relief to enjoin and restrain property owners from putting any buildings and outhouses, etc., nearer than twenty-five feet from the east line of Outlet Avenue, and seeking mandatory injunctive relief to compel the removal of such outbuildings, etc., as had been placed nearer than twenty-five feet to the Outlet Avenue east line and within the twenty-five foot set-back line.

■Demurrers were filed by some of the defendants, and the demurrers were overruled and all the defendants answered the bill. The defendants by -their answers denied the material allegations in the bill with reference to any agreement upon the part of the Chickasaw Gardens Subdivision owners that said set-back line of twenty-five feet was placed there for the benefit of the property owners on the west side of Outlet Avenue, and denied all the allegations with reference to any agreement with the property owners on the west side of Outlet Avenue. By their respective answers the purchasers of lots in the subdivision made defendants to the bill denied that there was any agreement of record, or that there was any written agreement of any kind entered into between the owners of the subdivision and the protesting owners of property on the west side of Outlet Avenue and denies that they purchased said lots with any notice, actual or constructive, that any such agreement had been made and denied that any such agreement had been made, and denied that complainant had any right to enforce any of the building restrictions and limitations contained in the plan of subdivision, and specifically plead the statute of frauds and perjuries.

The cause was heard by the Chancellor on oral evidence of witnesses under stipulation, and at the hearing of the cause the Chan- *538 eellor held that complainant was not entitled to any of the relief sought against any of the defendants, and accordingly decreed a dismissal of the bill at the cost of complainant. From this decree complainant prayed and was granted an appeal to this court, after a motion for a new trial had been overruled by the Chancellor. The appeal has been perfected and errors assigned.

The Chancellor held that complainant had failed to show by a preponderance of the evidence that the Chickasaw Gardens Subdivision Company had entered into any agreement with the property owners owning property on the west side of Outlet Avenue, and held that there had not been any contractual agreement reached between thí¡ owners of the proposed subdivision and the protesting owners of property on the west side of Outlet Avenue. The Chancellor further held that complainant was not the owner of any property in the subdivision, and that complainant was not entitled to the benefit of any building restrictions and limitations contained in the plan of the subdivision, and was not entitled to the injunctive relief sought.

It appears from the record that the corporate name of the subdivision corporation has been changed to the Garden Communities Corporation by amendment to the charter. This corporation became thq owner of the large tract of land formerly known as the Clarence Saunders tract on which he had erected the Pink Palace, and with the view of converting it into a high class subdivision property. It was located near the city limits of the city of Memphis, and the west side of the tract extended back to the east side of a street known as Outlet Avenue, which was also outside of the city limits of the city of Memphis, prior to 1929, when it seems that all this property was taken into the city limits. It also appears that prior to the time this property was taken into the city limits, that before a subdivision could be laid off and the plan recorded within a distance of five miles of the city limits of Memphis, it was necessary to procure the approval of the Memphis City Planning Commission and the Memphis Street Commission. This. was provided by special act of the legislature. When the owners and promoters of this proposed new subdivision development were planning to open this subdivision, several surveys and plats, in the nature of preliminary surveys and plats of the proposed subdivision were prepared, to be submitted to the City Planning Commission of Memphis for approval.

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

Related

Land Developers, Inc. v. Maxwell
537 S.W.2d 904 (Tennessee Supreme Court, 1976)
Marron v. Scarbrough
314 S.W.2d 165 (Court of Appeals of Tennessee, 1958)

Cite This Page — Counsel Stack

Bluebook (online)
13 Tenn. App. 535, 1931 Tenn. App. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenzi-v-colberg-tennctapp-1931.