Wade v. Magee
641 S.W.2d 321
Tex. App.
1982
Check Treatment

*1 C.J., Before STEPHEN MAGEE, L. Holt SCHULTE, and OSBORN JJ. No. 08-81-00277-CV. OPINION OSBORN,

El Paso. Justice. Wade and wife appeal N. from a injunction which prohibits them Denied Rehearing Sept. building carport city adjoins lot which portion the lot is located where their home because of building partic- cover this Monahans, Texas. ular Carr, Paul owner, placed certain platted building restric- 7, upon Blocks 9 and 10 of tions Park *2 322 1961, and West One-half of Blocks 8

Addition —Houston where the court 9, City Addition to Bellaire of Mon- and said: City accepted The Council the dedi- ahans. urges that the term “lot” is and into cation of streets annexed land meaning and can include variable acre- of city. provides: Restriction 6 can have different conno- age. The term carports and shall garages large All tations, depending upon all facts and cir- automobiles, enough two to accommodate its use. attending Where it is cumstances and carports which are garages and such with a as here in connection contem- used lots must on corner have side or located acreage of urban platting into a thereto. rear entrances subdivision, we think it city residential 1976, September, Annette meaning In but one and that is it is can have 4, 10, Lots 5 purchased and 6 in Block Wade part block limited a fractional to the City Park Addition of Monahans. approved on an recorded fixed boundaries lot. following a corner The Lot 6 was Compa- Lumber plat. Mawson-Peterson month, they sold the South 94 feet Lot 5 of 334, 588, 59 ny Sprinkle, Wyo. 140 P.2d v. 6 of feet Lot 4 in 10. the North Block 1089; Ontario Land & Im- 147 A.L.R. all of Lot 6 and the adjoining retained They Bedford, 181, 90 v. Cal. 27 provement Co. 5. They of Lot now 16 feet own and North Suit, 39; Town of Greendale v. 163 P. occupy garage house and Lot located on 658; 282, N.E. Green 71 Avenue Ind. 1980, early 1979 started In late Chambers, Apartments Tex.Civ.App., a foot by of 12 40 struc- 675, no writ history. the North ture, on 16 feet Lot located holding in case The followed was to used a for an Company, Construction Inc. v. Calvin Reid and pickup. trailer Airstream Coleman, 145 (Ala.Civ.App.1981) 397 So.2d other who are Appellees, property owners court wrote: where the subdivision, obtained a temporary short, is a unit acre of measure In injunction stop use in describing ment that suitable injunction was per- That made struction. large unsubdivided, a portion of un one October, upon basis manent of land. On the developed, tract had in effect Appellees made “lot,” hand, when the term used in con 5 part of Lot Lot 16 feet 6 North contemplated platting nection joint through ownership, that the subdivision, acreage into was on a corner lot and it proposed garage part of a block a fractional limited means or rear a side entrance. did not have an approved boundaries re by fixed presents the single This plat. Ayrshire Corp., Wall Tex. corded North 16 feet of Lot 5 is as to (1961). 352 496 Civ.App., S.W.2d by reason the fact corner lot addition, we áre bound those Lot who own a cor holdings that restrictive covenants are to be adjoining own the North 16 also ner against strictly person seek We hold that 6 although feet of Lot them, and all ing to enforce doubts lot, no part a corner in favor of resolved the free and must be in question property. of one’s Baker unrestricted applicable. Henderson, Tex. covenants in re- The restrictive Valley Shenandoah Im (1941); Gilbert plat attached is made a that the cite (Tex. 592 S.W.2d 28 provement covenants and plat said the restrictive 1979, writ). Civ.App. — Beaumont dividing measurements exact shows Derry numbered lot and Township for each block Municipal lines Detweiler v. meaning term “lot” 29 Pa.Cmwlth. A.2d court Wall v. Ayrshire Appellees rely, before the (1977), (Tex.Civ.App. Corporation, municipal S.W.2d is a controlling. It tax case am ap- agree unable to that the majority does not involve under the doctrine of upheld lots in a subdivision. particular can be plicable opinion and resolution strict construction Appellants’ points two of er- We sustain seeking to enforce restrictive person permanent injunction dis- order the ror and relating “Restrictive solved. were rather strict of land to the use *3 early stages of their Justice, Chief STEPHEN However, the modern tend development. dissenting. and the enforcement ency favors their to the use of the writ of provisions of their dissent and would affirm respectfully I Lowe, Remedies, 27, pp. sec. injunction.” granting of the trial court the 1973). Practice (6 Texas 2d ed. In 53-56 injunction in this matter. Homeowners’ Inc. wood North case, the problem this arises As I view Meier, 742 (Tex.Civ.App.— inside lots from the fact and corner writ). no Dist.] [1st differently under cove- lots are treated the thoroughly discussed in the final Appellants seek nants of the litigated much of the case of Davis version under the lot occupy a corner to (Tex.1981). En Huey, 620 S.W.2d lots; they inside evade to applicablé would grounds denied forcement was running with their land by the covenants restriction, notice of the was a lack there property lines. The has changing majority in the case before us. present a matter “although lot, Lot 6 is a corner held that which I think But, applica law as to the part of Lot 5 us, the court said: case before ble to the applicable.” in Walker, 112 Tex. “In Curlee Thus, strip the 16 (1922), quoting ap with S.W. by application a “lot” of the re- status of Lottman, Hooper v. proval from S.W. to inside applicable Appel- lots. strictions (Tex.Civ.App. Paso — El on, house occupy, and use lants have several per stated rules the court in the normal contem- corner in a covenants subdivision: taining to a lot in a use of subdivi- may safely rule stat- general So sion; have, effect, enlarged that lot general there is a that where ed to be strip. 16 foot adding allowing adopted by the owner plan or scheme applicable and restrictions to that covenants tract, development and for the of a strip to control Appellants’ 16 foot use of property by improvement lot, the majority allowing the corner lots, into streets it is divided dog. covenants, Under the wag to tail contemplates a restriction toas thing, is one and a lot corner lot is inside may put, lots uses to which another, Appellants in their use improve- and location of the character so in do accordance lot must with the corner thereon, to be secured a cove- ments to corner applicable lots. covenants the restriction to be embodying nant concept underlying the use of The basic purchasers; to the deed inserted is that each purchaser covenants restrictive language of the appears is subjected to in a restricted itself, light deed to the and entitled benefit of a the burden circumstances, such surrounding Huey, Davis covenant. are intended for the benefit the majority opinion I find (Tex.1981). lands, purchas- and that each of all the concept for it allows trary thereto, this basic to subject and to have er is to be enjoy the benefits of the cor- thereof, and such covenants the benefit but not the burdens. ner lot covenants in all the deeds for lots inserted are holding mutuality violates the of the plan, pur- find pursuance sold central to purpose of re- obligations assigns may enforce the and his chaser purchaser, strictive covenant if he assigns, bought has and his knowledge or constructive

actual

scheme, the covenant was purchase.” matter of his subject of the current status of the

Indicative is the area fact that in 1977 the

law in this 1293b, enacted Article Tex.Rev.

Legislature

Civ.Stat.Ann., providing that in an action aof breach

based property, prevailing to real

pertaining reasonable

party attorney shall recover fees his costs and claim. There

in addition attorney claim fees the case

was no *4 us, and reference to the statute is show current

merely to trend

law. stated, I would affirm reasons

For the of the trial court. DAVIS, vir., Appellants, C.

Francis

QUALITY CONTROL, PEST C14-82-012CV. (14th Dist.).