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ROY E. MASSENGILL v. RAYMOND JONES ET AL. (12/17/57)

December 17, 1957

ROY E. MASSENGILL, APPELLANT,
v.
RAYMOND JONES ET AL., APPELLEES



Author: Fanning

FANNING, Justice.

Roy Massengill, as plaintiff brought suit against Raymond Jones and Cherokee Water Company, alleging that defendant Cherokee Water Company had issued shares of stock and made leases with 1,500 parties on lots fronting on Cherokee Lake, including plaintiff Massengill and defendant Jones, with Massengill and Jones having adjacent lots on the lake, with plaintiff further alleging that each of said leases contained a provision as follows: "With the exception of a landing pier and boat-house, no structure shall be built nearer than seventy-five feet from the spill-way water level of said lake, nor shall boat piers or structures be extended into boat roads," and alleging that the placing of such provision in each of the said 1,500 leases created a general building scheme or plan of development of the lots bordering on said lake designed for the purpose of making the lake and land more attractive for residential purposes and as an inducement to each lessee to lease from the lessor an individual lot, and that such alleged restriction inured to the benefit of each lessee who could sue to enforce same and further alleged that Jones violated said alleged restrictive covenant by building (or commencing the building) of a concrete block house within 35 or 40 feet from the spill-way water level of said lake. Plaintiff sought an injunction against Jones to restrain him from completing the building and a mandatory injunction to require the removal of the building. Plaintiff also sought an injunction against the defendant Cherokee Water Company to enjoin it from refusing to stop Jones from completing the structure or from occupying same and from refusing to enforce the alleged restrictive covenant in question, etc.

The trial on appellant's application for permanent injunction was had before the court without the intervention of a jury. At the conclusion of plaintiff's evidence the defendants moved the court for judgment in their favor, which was granted. The trial court filed findings of fact and conclusions of law. Appellant's request for amended findings of fact and conclusions of law were denied by the trial court. Massengill has appealed from the judgment of the trial court.

We have carefully reviewed the record and conclude that the trial court correctly rendered judgment for appellees. As hereinafter stated, we think there are several good and sufficient independent reasons why the judgment of the trial court should be affirmed.

First: The burden of proof was upon Massengill to show that Cherokee Water Company owned the Jones lot in question. This appellant failed to prove to the satisfaction of the trial court which found that the lot was owned by Jones. We have carefully reviewed the evidence and it is our opinion that Massengill failed to meet the burden of proof cast upon him to prove that such lot was owned by Cherokee Water Company. Furthermore, Cherokee Water Company did not even claim the lot but in effect in its pleadings judicially admitted that it did not own said lot.

Second: The burden of proof was upon Massengill to show that Cherokee Water Company and defendant Jones executed a valid lease containing the alleged restrictive covenant in question on lot NQ 24-A, the lot in question. This appellant failed to do to the satisfaction of the trial court which found to the contrary. No executed lease covering the lot in question between Cherokee Water Company and defendant Jones was ever offered in evidence in the cause. Appellant sought to establish that such a lease was executed by the testimony of Guy Lamb, Secretary of the Water Company, attempting to show by Lamb and the records of the Water Company that such character of lease was mailed to Jones at his mailing address at Kilgore, Texas, however on cross-examination Mr. Lamb testified positively as follows: "Q. Now, Mr. Lamb, this one question. You have no record of any lease agreement entered into between Mr. Jones and the Cherokee Water Company, at all, do you?" "A. No, sir." Appellant also points to the evidence of Mr. Lamb wherein he testified to the effect that the records of the Water Company showed that Jones had paid the annual rental charges on lot NQ 24-A from 1950 to 1957. Appellee Jones in his brief contends that the evidence of Lamb indicates that there was some confusion in the records of the Water Company with reference to Lot 22 (another lot which Jones claimed ownership of) and Lot NQ 24-A, and contends that the rentals on lot NQ 24-A were not due to be paid by Jones since the Water Company did not own lot NQ 24-A, but that Jones owned lot NQ 24-A. We have carefully reviewed the evidence and hold that appellant did not discharge the burden of proof incumbent upon him to prove that there was ever a valid lease executed by Jones and the Water Company covering lot NQ 24-A.

Third: The burden of proof was upon Massengill to establish that Cherokee Water Company had a general building plan or scheme to restrict the construction of dwellings at a distance of not less than 75 feet from the spill-way water level of the lake. Appellant failed to prove this to the satisfaction of the trial court. The only proof offered by appellant on this issue was to the effect that the Cherokee Water Company had executed some 1500 leases containing the 75-foot provision.

In 12 Tex.Jur., p. 169, Sec. 106, it is stated:

"Presumptions with regard to conveyances, import the greatest possible estate and the least restriction upon the use of the property granted compatible with the language of the deeds. The mere fact that various deeds from a common grantor contained the same restrictions has been held to be insufficient to show that the establishment of a general plan or scheme was intended, or that such restrictions were imposed for the benefit of any other lots conveyed by the grantor since the existence of such a general plan or scheme depends not upon the intent of the common grantor alone but upon the joint intent of the grantor and grantees." (Italics ours.)

In 14 Am.Jur., p. 613, Sec. 202, it is stated:

"One of the most common forms of creating building restrictions is by the establishment of a general building plan covering a tract divided into a number of lots. As already shown, where such a plan is created, the conveyance of a lot or lots therein raises an implied covenant restricting the remaining lots. The conveyance of several lots or tracts by deeds incorporating building restrictions indicates a purpose to adopt a general building plan, especially where a grantee of lots conveys one to one person and later a contiguous lot to another, incorporating in each deed the building restrictions under which he holds his title. However, conveyance in this manner is not, according to the better view, of itself sufficient to create such a plan. The most common test of the existence of a general building or neighborhood scheme is an intent that the protection of the restrictive agreements inure to the benefit of the purchasers of the lots in the tract. Such an intent is said to arise from representations as to the restriction, made for the purpose of inducing the purchasers of the several lots to pay higher prices because of the restriction." (Italics ours.)

In Pierson v. Canfield, Tex.Civ.App., 272 S.W. 231, 233, it is stated:

"The right of appellees to enforce covenants in the deed, under which appellant claims, to which they are neither parties nor assigns, necessarily depends on a showing that the covenants were entered into for the benefit of their property. There is nothing in the deed, or in the evidence otherwise, indicating that the parties to the deed intended the covenants for the benefit of either prior or subsequent purchasers from the common grantor. On the issue of fact, as to the existence, whether or not of a uniform scheme of construction in settling the addition, the only evidence before the court are the four deeds containing identical restrictions as to the use of the lots. Three were executed by the common grantor to the persons under whom appellees Canfield, Killough, and Martins claim title, the other is the deed executed by the common grantor to the party under whom appellant claims. There is no language in these deeds referring to a common scheme of restrictive settlement or other evidence of any agreement whatever between the grantor and the grantees that the lot, or lots, were conveyed subject to, or as a part of, any such scheme.

"The fact that these deeds contained identical restrictions would not, in our opinion, be sufficient of itself to establish the existence of a general scheme, or that the restrictions in the deed under which appellant claims were intended for the benefit of any other lot, or lots, conveyed by the common grantor. It may be true that the coincidence of the execution of deeds, by the common grantor containing identical restrictions as to the use of the lots, shows that the common grantor had in mind a general plan, but the intent of the grantor alone cannot control, it requires the joint intent of grantor and grantee, and, as between them, the instrument, or instruments, exchanged and forming a part of the transaction constitute the final and exclusive evidence of the intent of the parties and of the covenants entered into.

"The right claimed by appellees to enforce against appellant restrictive covenants as to the cost and location of buildings on the lot owned by him, is, if it exists at all, a servitude running with the land in favor of the lots owned by appellees and against the lot owned by appellant. Such servitude or burden, curtailing the liberty of the owner to use and improve his property as he chooses, is an interest of such magnitude as to constitute an estate in lands, and, as such, must be * * * created as other such servitudes, interests and estates in lands are required to be created." (Italics ours.)

In Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318, 321, it is stated:

"The existence of an 'easement' or 'equity' in a tract of land growing out of restrictive covenants as to use can hardly be conceived except in connection with another tract of land, which may be said to be the dominant estate and for which the easement or equity is created. In every case where parties seek to enforce a restrictive covenant the burden of proof is upon them to establish that the covenant was imposed on defendant's land for the benefit of land owned by them. It is also well settled that in the absence of proof that a restriction was imposed for the benefit of other land, it is construed as a personal covenant merely with the grantor. In many instances it is held that unless it is expressly shown in the conveyance itself that the ...


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