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Simon v. Henrichson

394 S.W.2d 249, 1965 Tex. App. LEXIS 2176
CourtCourt of Appeals of Texas
DecidedSeptember 23, 1965
Docket114
StatusPublished
Cited by22 cases

This text of 394 S.W.2d 249 (Simon v. Henrichson) 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
Simon v. Henrichson, 394 S.W.2d 249, 1965 Tex. App. LEXIS 2176 (Tex. Ct. App. 1965).

Opinion

NYE, Justice.

Appellees, as plaintiffs in the trial court, brought suit seeking a declaratory judgment removing residential deed restrictions from their property in Corpus Christi, Texas. There were twenty-five named defendants as owners of lots in the subdivision, who were sued in their individual capacity and as representatives of all classes of other property owners within the subdivision. The trial was before a jury which answered special issues favorable to plaintiffs. Judgment was rendered cancelling the restriction. The appellants (defendants) have perfected this appeal.

*252 Primarily, the question for us to determine is whether or not the issues submitted to the jury and the evidence upon which the issues were answered are sufficient to permit affirmative relief as sought by the plaintiffs in the trial court.

The plaintiffs have more of an onerous burden in obtaining affirmative relief to remove the restrictive covenants against their property and to establish the invalidity of such restrictions, than a property owner has in defending a suit brought by one or more owners of lots in a restricted subdivision to enjoin him from violating such restrictions. In the latter class of cases, regardless of the ruling on the injunction, the restriction is not removed, even if the violation as it exists, continues; whereas, as in this case, the removal of the restriction as a cloud on the title, nullifies it for all time. The courts, consequently demand much stronger proof for obtaining affirmative relief than for prescribing in-junctive relief.

The jury found in response to special issues submitted that: Lots 1 and 2 in Block 2 have been rendered reasonably unsuitable for exclusively residential purposes because of changes in the addition in the area of the lots and the area surrounding the addition; that a majority of the residential owners in the addition have waived the right they may have had to- prevent the use of Lots 1 and 2 for business purposes; that the removal of restrictions on Lots 1 and 2 would not prove harmful to resident owners; and that changes in the addition in the area of Lots 1 and 2 and the area surrounding said addition have not materially damaged the scheme of development of the balance of the addition for residential purposes. Judgment was rendered removing the residential restriction only from plaintiffs’ Lots 1 and 2, Block 2, Edgewater Terrace Addition.

Originally, in 1938, the subdivision was platted to permit a business community along the water side of Ocean Drive, to include commercial property for a business community center on six lots at the extreme south end of the addition. Deed restrictions were filed contemporaneously with the original plat to limit business to these six lots and restricting all of the balance of the lots in the subdivision to residential use. The following year the subdivision was re-platted deleting three lots on the water side of Ocean Drive, leaving only three lots designated as business area. No change or amendment to the deed restrictions was made reducing the business lots from six to three. The second plat made radical changes in the addition, including the bringing along of Alameda Street to intersect at this point with Ocean Drive. This is a very busy thoroughfare, running parallel to Ocean Drive for many miles exeept at this point where it intersects with Ocean Drive. Plaintiffs’ lots are at this intersection and across the street on Ocean Drive from the business community. They are in effect a portion of an island, segregated from the rest of the subdivision. On the north from plaintiffs’ property is Ocean Drive and the commercial business center. On the east is Oso Bay and the salt flats. On the west is Alameda Drive and the bulk of the residential subdivision. To the south, including the balance of Block 2, are residential restricted lots, vacant and never developed in the twenty-seven years that this subdivision has been in existence. There are some 250 lots within the subdivision, almost all of which have been developed, save and except, the residential lots in Block 2, which join plaintiffs’ property and front on Alameda and Ennis Jos-lin Road and which back up to the Oso Bay salt flats. We have prepared and inserted a plat that is not the reproduction of any particular exhibit in the record, nor has such plat been drawn to scale. However, we believe that the particular facts concerning the situation around plaintiffs’ property can be more readily understood by reference to the plat.

*253

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394 S.W.2d 249, 1965 Tex. App. LEXIS 2176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-henrichson-texapp-1965.