Wade v. Magee

641 S.W.2d 321, 1982 Tex. App. LEXIS 5003

• Court: Court of Appeals of Texas
• Decided: August 18, 1982
• Docket: 08-81-00277-CV
• Status: Published

Opinions

OPINION

OSBORN, Justice.

Charles N. Wade and wife appeal from a permanent injunction which prohibits them from building a garage or carport on a portion of a city lot which adjoins the lot where their home is located because of building restrictions which cover this particular subdivision of Monahans, Texas.

In January, 1960, Paul Carr, as owner, platted and placed certain building restrictions upon Blocks 7, 8, 9 and 10 of Park Addition and the West One-half of Blocks 8 and 9, Bellaire Addition to the City of Mon-ahans. The City Council accepted the dedication of streets and annexed the land into the city. Restriction No. 6 provides:

All garages and carports shall be large enough to accommodate two automobiles, and such garages and carports which are located on corner lots must have side or rear entrances thereto.

In September, 1976, Charles and Annette Wade purchased Lots 4, 5 and 6 in Block 10, Park Addition to the City of Monahans. Lot 6 was a corner lot. The following month, they sold the South 94 feet of Lot 5 and the North 6 feet of Lot 4 in Block 10. They retained all of Lot 6 and the adjoining North 16 feet of Lot 5. They now own and occupy the house and garage located on Lot 6. In late 1979 or early 1980, they started construction of a 12 foot by 40 foot structure, located on the North 16 feet of Lot 5, which was to be used as a garage for an Airstream trailer and pickup.

Appellees, who are other property owners in the subdivision, obtained a temporary injunction in January, 1980, to stop construction. That injunction was made permanent in October, 1981, upon the basis that the Appellees had in effect made the North 16 feet of Lot 5 a part of Lot 6 through their joint ownership, and that the proposed garage was on a corner lot and it did not have a side or rear entrance.

This appeal presents the single issue as to whether the North 16 feet of Lot 5 is a corner lot by reason of the fact that Appellants who own Lot 6, which is a corner lot, also own the adjoining North 16 feet of Lot 5. We hold that although Lot 6 is a corner lot, no part of Lot 5 is a corner lot; thus, the restriction in question is not applicable.

The restrictive covenants in question recite that the attached plat is made a part of the restrictive covenants and said plat shows exact measurements and dividing lines for each numbered lot and block in the subdivision. The meaning of the term “lot” was before the court in Wall v. Ayrshire Corporation, 352 S.W.2d 496 (Tex.Civ.App. —Houston 1961, no writ), where the court said:

Appellant urges that the term “lot” is of variable meaning and can include acreage. The term can have different connotations, depending upon all facts and circumstances attending its use. Where it is used as here in connection with a contemplated platting of urban acreage into a city residential subdivision, we think it can have but one meaning and that is it is a fractional part of a block limited by fixed boundaries on an approved recorded plat. Mawson-Peterson Lumber Company v. Sprinkle, 59 Wyo. 334, 140 P.2d 588, 147 A.L.R. 1089; Ontario Land & Improvement Co. v. Bedford, 90 Cal. 181, 27 P. 39; Town of Greendale v. Suit, 163 Ind. 282, 71 N.E. 658; Green Avenue Apartments v. Chambers, Tex.Civ.App., 239 S.W.2d 675, no writ history.

The holding in that case was followed in Calvin Reid Construction Company, Inc. v. Coleman, 397 So.2d 145 (Ala.Civ.App.1981) where the court wrote:

In short, an acre is a unit of measurement that is suitable for use in describing one portion of a large unsubdivided, undeveloped, tract of land. On the other hand, the term “lot,” when used in connection with a contemplated platting of acreage into a residential subdivision, means a fractional part of a block limited by fixed boundaries on an approved recorded plat. Wall v. Ayrshire Corp., Tex.Civ.App., 352 S.W.2d 496 (1961).

In addition, we áre bound by those holdings that restrictive covenants are to be construed strictly against the person seeking to enforce them, and that all doubts must be resolved in favor of the free and unrestricted use of one’s property. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941); Gilbert v. Shenandoah Valley Improvement Association, 592 S.W.2d 28 (Tex.Civ.App.—Beaumont 1979, no writ).

Detweiler v. Derry Township Municipal Authority, 29 Pa.Cmwlth. 277, 370 A.2d 810 (1977), upon which Appellees rely, is not controlling. It is a municipal tax case and does not involve a restrictive covenant applicable to particular lots in a subdivision.

We sustain Appellants’ two points of error and order the permanent injunction dissolved.