This court has determined that the judgment entered in this case should be reversed, primarily, it appears, because the trial court refused to admit certain testimony into evidence. Since I believe that the testimony was properly excluded and was immaterial in that it could not have altered the outcome of the case, I respectfully dissent. *Page 265
Appellants contend that the court erred in withdrawing their case from the jury because there was an issue of fact as to whether appellees were violating certain restrictions on the of their property.
By deed dated July 10, 1967, the Youngs conveyed to the Gardners "Lot B', describing it only by a metes and bounds description. Specific reference was made to the "Declaration" of June 29, 1967, and to the easements reserved therein. The second of these restrictions reads: "All utility, garage or service areas shall be screened with a brick wall sufficient in height to obscure the presence of such utility, garage or service area from the other residents as may be located on said Tracts A and/or B."
Covenants or restrictive clauses in instruments concerning land must be construed strictly against the grantor. In construing such covenants the court should ascertain the intent of the parties from the language used in light of the existing circumstances. Fischer v. Reissig, 143 S.W.2d 130 (Tex.Civ.App. — Austin 1940, writ ref.).
This covenant requires that all utility, garage or service areas shall be screened. It requires that the screen be a brick wall sufficient in height to obscure the presence of such areas from the other Residents as may be located on said Tracts A and/or B." The emphasis is placed on the height of the wall. The object to be attained by the covenant was to obscure the service areas from the sight of the residents of the adjoining lot. It requires the construction of a wall of sufficient height to accomplish that end.
A resident is one who dwells permanently or continuously at a particular place. The phrase "as may be located" on the lot further restricts the meaning of the covenant. The covenant must be held to require the Gardners to construct a brick wall high enough and so located as to conceal or hide, make inconspicuous or indistinct, the utility, garage and service areas from the view of Mr. and Mrs. Young, and such others as may reside on Lot A, when they are physically on that lot.
The Gardners have constructed a substantial brick wall adjacent to the dividing line between Tracts A and B. This fence extended to a point approximately even with the outer edge of the carport, which the testimony establishes as being fifteen feet from the property line. Forms and been laid to extend that fence in a curve out into the 10 driveway easement and to the carport. Construction was temporarily halted by an injunction, which was later dissolved. Appellees sought, and were granted, in this action an injunction prohibiting appellants from interfering with such use of the easement.
It is clear that if appellees' fence should be extended over the driveway easement it would be impossible to see the carport with the possible exception of a small part of the roof. As presently completed it can be seen by one standing within fifteen feet of the Youngs' southeast property line. The Youngs testified that they could see the carport. There is no disputed issue of fact.
The question of what constitutes a violation of a restrictive covenant is a question of law. Only issues of fact should be submitted to the jury. Baker v. Brackeen, 354 S.W.2d 660 (Tex.Civ.App. — Amarillo 1962). The covenant in issue does not prohibit unconcealed carported and service areas. It is an affirmative covenant requiring the construction of a brick wall. The wall erected by appellees reasonably complies with its provisions.
In Alexander Schroeder Lumber Co. v. Corona, 288 S.W.2d 829 (Tex.Civ.App. — Galveston 1956, writ ref. n.r.e.), Justice Gannon wrote:
*Page 266". . . While we hold that as a matter of strict legal right the general plan prohibits the erection of fences on property in the addition, we do not wish to be taken as indicating that such legal
right is necessarily enforceable in equity. The law side of the docket does not concern itself with servitudes of the character under discussion. We feel that before a suitor in equity could successfully complain of a neighbor's fence in the addition involved, he would have to show something more than a trivial annoyance, but rather such a fence as here, which, from the photographs in evidence, clearly appears to be a material detriment to the full enjoyment of their homes by residents of the addition."
Appellants' complaint necessarily is that the wall as now constructed does not completely conceal the carport and parking facilities. The carport is in plain view of appellants from their driveway on the 40 easement. The fact that the carport can also be seen from one small area of appellants' lot is not such a material detriment to the full enjoyment of appellants' home as to warrant the intervention of a court of equity.
The trial court did not err in refusing to submit to the jury, the requested Special Issue G, inquiring whether appellees failed to screen their carport with a brick wall sufficient to obscure its presence from other residents located on appellants' adjoining lot.
Restriction number 3 contained in the Declaration of Subdivision provided: "No structure shall be built on Tract B nearer than 40 from the South boundary line of said Tract or nearer than 60 from the West boundary line of said Tract." On August 25, 1967, Mr. Gardner presented Mr. Young with a plat of his proposed house and two drawings, one purporting to be a view of the house from the side facing the Young property and the other a view from the driveway located on the 40 easement. The plat had typed on it: "We agree to amend the restrictions applicable to Lot 1, Block 91, Tall Timbers Addition, to allow the construction of improvements on Tract B no nearer than 15 from the South boundary and 35 from the West boundary." The Gardners approved this amendment to the building line restrictions and evidenced their approval by affixing their signatures to the plat below the quoted writing. The Gardners also signed the plat. Thereafter the Gardners proceeded to construct their house on Tract B.
Appellants filed their original petition April 26, 1968. In the pleading on which they went to trial they alleged that Mr. Gardner represented to them that the garage, service area, and servants' quarters would be screened by a brick wall so as to obscure such areas from residents of Tract A and from persons using the Youngs' driveway constructed on the 40 easement and that they relied on such representations when they approved the amendment to the building line restrictions as reflected by the plat dated August 25, 1967.
The petition alleged that just prior to the date of its filing the plaintiffs learned that the defendants intended to construct and were constructing utility, garage, and service areas facing and fronting upon said forty (40) foot easement and the driveway to plaintiffs' home "not only contrary to . . . the applicable restrictive covenants to which Tract B is subject, . . . but contrary to and in violation of the representations, assurances, agreements and pretense of defendants to plaintiffs at and prior to the time plaintiffs approved said plat . . ." That they prayed for injunctive relief and that said plat "and plaintiffs' approval thereof, which is void and without force or effect," should be cancelled and declared to be of no force or effect. The plaintiffs also sought damages for the decreased value of their property due to the violations of the restrictions by the maintenance of the service area "in violation of and contrary to the aforesaid representations, assurances, and pretenses made by Defendants to Plaintiffs."
Appellees filed a motion in limine requesting the court to instruct the attorneys for plaintiffs and their witnesses to refrain from mentioning, directly or indirectly, in *Page 267 any manner, any purported oral agreements between any of the parties, which would have the effect of varying the terms of written documents and to impress additional building restrictions upon the defendants' real property, all in violation of the parole evidence rule and the Statute of Frauds, without first approaching the court out of the hearing of the jury and advising the court of the nature of such evidence and the reason for which it will be offered. The motion in limine was granted.
Subsequently testimony of Mrs. Young was taken for a bill of exceptions. Appellants' counsel stated to the court that it was his position that the plaintiffs were entitled to attack the agreement changing the building lines under numerous exceptions to the parol evidence rule and that it was his understanding that the court's ruling on the motion in limine prevented him from doing so for any reason and further prevented him from asking questions which might lead up to or lay a ground work for such at attack. He then represented to the court that the testimony to be elicited should have gone to the jury in connection with the defendants' Exhibit Number 3. At the conclusion of the direct examination of Mrs. Young for the purpose of the bill, counsel for the appellants offered the testimony for the purpose of having the court submit it to the jury. Thereafter, following a similar procedure, Mr. Young testified on a bill of exceptions. The testimony of Mr. and Mrs. Young so taken is recorded in 41 pages of the Statement of Facts.
"A contract, which has been reduced to writing, and which imports on its face a complete expression of the whole agreement, without any uncertainty or ambiguity as to the object and extent of the engagement, must be taken as expressing the final views of the parties, as well as the full consummation of their undertaking.
"In the absence of fraud, accident, or mistake, parol evidence is inadmissible to vary, alter, or add to the terms of a written contract, clear in its terms, unless upon its face it in some manner rebuts the presumption that it is complete. This rule forbids the adding by parol where the writing is silent, as well as to vary where it speaks." Guarantee Life Ins. Co. v. Davidson, 234 S.W. 883 (Tex.Com.App. 1921).
If the parties intend to restrict a writing to specific elements or subjects of negotiation, then other subjects of negotiation can be established even though they are different from the writing. Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184 (1955).
The writing in question appears on its face to be restricted to a specific subject of negotiation. While it relates only to the building set-back lines, the agreement expressed in the writing and the alleged oral agreements all relate to the same general subject of amending the property use restrictions. The agreement imports on its face to be a complete expression of the whole agreement without any uncertainty or ambiguity. We must presume that the trial court has found that the writing expressed the complete agreement. ". . . An oral contemporaneous condition cannot be proved if it is inconsistent with the terms of a written instrument duly delivered to the party against whom the condition is sought to be invoked." Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946).
The fact that a prior oral agreement inconsistent with the written agreement induced a party to enter into the written agreement would not remove the bar of the parol evidence rule. Firestone Tire Rubber Co. v. Fisk Tire Co., Inc., 131 Tex. 158,113 S.W.2d 175 (1938).
The appellees also interposed an objection based on the Statute of Frauds. A building restriction requiring that a residence built on an identified lot face a particular street was held to be an easement in Miller v. Babb, 263 S.W. 253 (Tex.Comm'n App. 1924, judg. adopted). In that case the court held an easement must be created *Page 268 by grant, and cannot be created by parol agreement. The court also said:
". . . The grantor was charged with knowledge that under the law no such easement in favor of his land could be created by an oral agreement or promise, even if made as part of the consideration of the sale. A contract prohibited by law cannot be enforced on the ground that it is supported by a consideration. . . . Article 3965, Revised Statutes, having provided that a contract for the sale of real estate cannot be enforced unless it is in writing, such contract resting in parol only is non-enforceable either in law or in equity. . . ."
The proffered testimony that appellees agreed to screen garages and service areas from the sight of those attempting to use the easement was properly excluded as being barred by the Statute of Frauds. For the same reason the court properly excluded the testimony that appellees agreed not to construct such service areas fronting on the driveway and 40 easement. Rector v. Anderson, 1 S.W.2d 699 (Tex.Civ.App. — Ft. Worth 1928). Such agreements constitute restraints on the use of land and must be in writing to be enforceable. Appellants' cause of action for damages for breach of the alleged oral agreements or for injunction to enforce them, is barred by the Statute of Frauds.
Appellants cite the rule that after the acceptance of a conveyance of lands the vendee cannot avail himself of the warrant of a written contract for the sale thereof in an action for the recovery of the purchase money. Newsom v. Newsom, 378 S.W.2d 842 (Tex. 1964); Anderson v. Eliot, 333 S.W.2d 654 (Tex.Civ.App. — Eastland 1960, writ ref.). This rule of law is simply inapplicable. There is no written instrument sufficient to satisfy the Statute of Frauds conveying to appellees an interest in appellants' real estate for which they could recover a consideration. The claimed consideration is not a simple money payment. It is an oral agreement to convey an interest in real estate.
In their pleadings the Youngs complained that the Gardners represented to them both orally and by means of the plat and drawings that their garage, carport, and service areas would be screened from view not only from the Gardners' property, but also from the driveway and easement leading to it. No other false representations were alleged. By the motion in limine they were forbidden from introducing evidence which would have the effect of varying the terms of written instruments or of impressing additional restrictions on the Gardners' property. In the rather voluminous testimony supporting the bill of exceptions, the only testimony pertinent to the pleadings, which was forbidden by the court's ruling on the motion in limine, was that relating to an alleged agreement that the garage and service areas would be screened from the view of one using the driveway leading to the Youngs' house, testimony that no service areas would be built facing the easement, and testimony concerning inducement and reliance.
While parol evidence tending to prove fraud on the part of appellees which induced appellants to execute the agreement amending the building set-back line was not barred by the parol evidence rule, appellees had the right to insist that such evidence be restricted to that relating to the grounds of fraud alleged in plaintiffs' petition. Where a plaintiff pleads generally a state of facts, and goes further and pleads specifically and particularly on the same subject, he cannot rely upon the general allegations, but is confined in his recovery to those specifically and particularly plead. Specific allegations will control those of a general character. Houston Printing Co. v. Hunter, 105 S.W.2d 312 (Tex.Civ.App. — Ft. Worth 1937, aff'd 129 Tex. 652, 106 S.W.2d 1043); Sutton v. Lewis, 176 S.W.2d 765 (Tex.Civ.App. — Ft. Worth 1943, writ ref.); Richardson v. First National Life Insurance Company, 419 S.W.2d 836 (Tex. 1967). *Page 269
Points five, six and seven complain of the trial court's refusal to permit the Youngs to testify that Mr. Gardner promised them that there would be no carport fronting their driveway; that the structure fronting the driveway would present a solid brick face to persons on such driveway; and that the parties agreed that the building line restrictions would be amended in the future by another written instrument setting out adequate protections for both parties and that the August 25th instrument was never intended as the final, complete and integrated agreement.
The testimony referred to in points five and six supports the allegations of fraud found in appellants' petition, but because of the Statute of Frauds this testimony was not admissible in support of plaintiffs' cause of action for injunction or for damages. Miller v. Babb, supra. Appellants stated that the purpose for which the evidence was offered was to attack the agreement changing the building lines. The statement referred to in points five and six are promises relating to future actions. Appellants have alleged that these promises were "pretenses'; that is, that the statements were false when made. The testimony was material on the issue of fraud inducing the execution of the amendment to the building line restriction, but in the absence of any evidence that appellees did not intend to perform their promises at the time of making the promises, there is no evidence of fraud. Stanfield v. O'Boyle,462 S.W.2d 270 (Tex. 1971). The parol evidence rule is applicable and the evidence could not have been considered had it been admitted.
The testimony that the parties did not intend the August 25th agreement to be the final, complete, and integrated agreement should not be admitted before the jury for the purpose of proving that fact. James v. Doss, 184 S.W. 623 (Tex.Civ.App. — Amarillo 1916); McCormick and Ray, Texas Law of Evidence, § 1602. This testimony would not come within appellants' stated purpose for making the Bill, that is, to present evidence attacking the written agreement.
Appellants tendered all of the testimony of each witness taken on the Bill. Some of the testimony could not have been admitted over a proper objection. The trial court did not err in refusing to admit the testimony under those circumstances.
Appellants' first point submits that the court erred in withdrawing from the jury appellants' entire case and entering judgment denying appellants recovery as a matter of law. While the trial court announced at the conclusion of plaintiffs' case that he sustained appellees' motion for directed verdict, this ruling was subsequently withdrawn. The record does not reflect that the court thereafter ruled on the motion. The judgment does not recite that an instructed verdict was granted. The case was tried to a jury. If issues of fact existed, appellants were required to request that such issues be submitted to the jury. Whether the trial court erred in entering judgment against the plaintiffs on their cause of action in this case must be determined by an examination of its rulings on the issues requested by them. Point one does not present error.
Appellants contend that the trial court erred in refusing to submit their requested Special Issues K and L. The first such issue reads: "Do you find from a preponderance of the evidence that the drawings showed to the Youngs on August 25, 1967, to obtain the signature of the Youngs, contained misrepresentations?' The second of these issues was predicated and asked whether such misrepresentations induced them to sign an agreement they would not otherwise have signed.
These issues were properly refused. Requested Special Issue K does not confine the attention of the jury to the misrepresentation alleged in the plaintiffs' petition as required by Rule 277, T.R.C.P., and would allow a finding based on an immaterial misrepresentation. It is not an ultimate issue of fact, but rather inquires as to a matter evidentiary in nature. *Page 270 Furniture Co. v. Cloutman, 276 S.W.2d 539 (Tex.Civ.App. — Beaumont 1955, writ ref'd, n.r.e.); Nussbaum v. Anthony, 214 S.W.2d 686 (Tex.Civ.App. — Amarillo 1948, writ ref'd, n.r.e.).
The refusal to submit Requested Special Issues H and I was not error. Requested Issue H reads: "Do you find from a preponderance of the evidence that on August 25, 1967, Gardner made such representations as to mislead or misrepresent facts to the Youngs?" Again, the issue does not confine the jury to the misrepresentation alleged. The issues requested are not sufficient to support a judgment based on actionable fraud since there could be no finding that the misrepresentation related to a material matter. The misrepresentation alleged related to future action and no issue was requested to determine whether there was an intention to perform at the time the representation was made, and such an issue would be deemed waived. There was no evidence to raise this issue. The issues requested were not in substantially correct wording. Rule 279, T.R.C.P.
Appellants urge that the trial court erred in holding as a matter of law that they have no current right to use any part of the 10-foot easement reserved for use as a driveway across appellees' lot, and enjoining such use. The Declaration of Subdivision provides:
". . . such property being subject to a 10 wide easement along the south boundary line of Tract B and adjacent to an existing 40 easement, such 10 easement being for use and benefit of Tract A as a driveway only, and to be used as such only in the event that the adjoining 40 easement shall be unavailable for use as a driveway or in the event the 40 easement does not qualify or suffice as a path of ingress or egress for Tract A under any ordinance, statute, or other restriction . . . No use shall be made of the 40 easement adjoining Tracts A and B other than as a driveway or drive area . . ."
Appellants constructed their driveway on the 40 easement except for one area where they decided to place it on the 10 easement because of trees growing on the 40 easement. They have continued to use the 40 easement for driveway purposes as have other property owners whose land adjoins the easement. Mr. Young testified that the City Building Code Inspector required that the 10 easement be created before appellants could obtain a final inspection of their building. Mr. Young testified that the City of Houston would not issue a "final building permit unless we located our driveway, or had that 10 easement to use." He also testified that he was denied a final building inspection because he had no access to a public street for fire trucks. Sec. 504 (a) of the City Code, City of Houston, Texas, was introduced into evidence. In part it reads: "Buildings shall adjoin or have access to a public space, yard, or street on not less than one side. Required yards shall be permanently maintained." The subheading preceding this section reads: "Location on Property."
It is an undisputed fact that up to the date of the trial the 40 easement was available for use, and was used as a driveway by appellants. The quoted ordinance is the only ordinance, statute, or restriction in evidence bearing on the question of whether the 40 easement qualifies or suffices as a path of ingress or egrees for Tract A. Appellants' building does not adjoin a public space, or street. It does adjoin a yard. This satisfies the ordinance. The yard is a "required yard" which must be permanently maintained. The ordinance does not affect the availability of 40 easement for use as a driveway for Tract A. The trial court did not err in enjoining the use of the 10 easement by appellants.
The owner of land subject to an easement of way may make any use of the land that does not unreasonably interfere with the use of the easement as a passageway. 25 Am.Jur.2d, Easements and Licenses, § 90, p. 496. If the easement reserved by the Youngs had granted an unconditional right *Page 271 to use the 10 strip of land for driveway purposes, the construction of a brick wall across it would undoubtedly have been contrary to the terms of the reservation and subject to abatement. However the easement is conditional and the condition authorizing its use has not occurred. Until the condition authorizing use by the Youngs does occur, the Gardners may make any use of the property they desire unless such use is of a nature as would render the property permanently unavailable for use as a driveway, or would violate an applicable restrictive covenant.
"An easement in favor of land gives no exclusive dominant right over the servient land unnecessary to the enjoyment of such easement. The dominant owner must make a reasonable use of the right so as to not unreasonably interfere with the property rights of the owner of the servient estate. This applies to either maintenance or use. In the light of these principles, the judgment of the trial court establishing these easements and protecting same is to be construed." Pokorny v. Yudin, 188 S.W.2d 185 (Tex.Civ.App. — El Paso 1945).