                              NO. 12-12-00076-CV

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS
WASSON INTERESTS, LTD.,
APPELLANT                                         §          APPEAL FROM THE 2ND


V.                                                §          JUDICIAL DISTRICT COURT OF

KELLY W. ADAMS AND
KAREN ADAMS,                                      §          CHEROKEE COUNTY, TEXAS
APPELLEES

                                                 OPINION
       This is a restrictive covenant case. Defendant and Appellant, Wasson Interests, Ltd. (Wasson),
is the owner of a 3.014 acre tract burdened by restriction limiting its use to “residential development
only.” The trial court found that Wasson’s current use of the property for maintaining hogs and goats
and other animals and for the storage of inoperable or unused vehicles was in violation of the
restrictive covenant. The court enjoined Wasson from placing or keeping on the property more than
one horse per acre or more than three household pets per residential unit. The court also awarded
Kelly and Karen Adams (the Adams), $22,000.00 in attorney’s fees. In two issues, Wasson challenges
the Adams’ standing to enforce the restrictions and the sufficiency evidence of supporting the court’s
finding of violation of the restrictions. We reverse and dismiss for lack of standing.

                                             BACKGROUND
       On January 16, 1962, the City of Jacksonville (City) leased Lot 42 of Block A of Lake Springs
Subdivision of Lake Jacksonville to Bill Canino for a term of ninety nine years. The Adams became
the assignees of that lease on April 21, 1993.
       On November 2, 1983, the City conveyed the 3.014 acre subject tract to M.G. Moore by a
general warranty deed that contained the “residential development only” covenant. Wasson became
the successor in interest to the subject tract on April 21, 2010. The subject tract is not, and has never

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been, a part of the Lake Springs Subdivision that includes the lot leased by the Adams and where they
reside. The subject tract is across a county road from the subdivision and the Adams’ leased lot. The
Wasson’s 3.014 acres is not part of a residential subdivision or any other type of planned development.
       The area where the subject tract is located is rural in character. In the past, the property
contained a pecan orchard and a peach orchard. There is no evidence of a residence on the property
until January 2009 when Wasson moved a mobile home there. Wasson removed the mobile home
when he received complaints that it violated the restrictions on the property. Thereafter, Wasson
began putting hogs, goats, and other livestock on the property. He also placed an inoperable 1957
Chevrolet and an old dump truck near the road. At one point Wasson kept sixteen pigs, seven goats,
three sheep, two horses, thirty chickens, five guinea fowl, and two peacocks on the 3.014 acres. The
result of this concentration was not only unsightly but evil smelling.

                                                STANDING

       Wasson contends that the Adams lack standing to enforce the restriction burdening the 3.014
acres. Standing is a threshold question. When the issue is raised, it should be addressed first. Exxon
Corp. v. Pluff, 94 S.W.3d 22, 26 (Tex. App.–Tyler 2002, pet. denied.).
Applicable Law
       In order for a party to enforce a covenant burdening land against a successor to the party with
whom he covenanted, the covenant must run with the land. Wayne Harwell Prop. V. Pan Amer.
Logistics, 945 S.W.2d 216, 218 (Tex. App. – San Antonio 1997, writ denied). For a covenant to run
with the land, the covenant must be made between parties who are in privity of estate at the time the
covenant was made, and must be contained in a grant of land or in a grant of some property interest in
the land. Id., citing Panhandle & S.F. Ry. v. Wiggins, 161 S.W.2d 501 (Tex. Civ. App.–Amarillo
1942, writ ref’d w.o.m.). Privity of estate between covenanting parties means a mutual or successive
relationship exists to the same rights in property. Westland Oil Dev. Corp. v. Gulf Oil, 637 S.W. 903,
910-11 (Tex. 1992). A restrictive covenant is ordinarily enforceable only by the contracting parties
and those in direct privity of estate with the contracting parties. Ski Masters of Texas LLC v.
Heinemeyer, 269 S.W.3d 662, 668 (Tex. App. – San Antonio 2008, no pet.); see also Davis v. Skipper,
125 Tex. 364, 83 S.W.2d 318, 321-22 (1935); Harwell, 945 S.W.2d at 218. An exception to the
general rule exists, although not relevant here. A property owner may subdivide his property into lots
and sell the lots to separate grantees, imposing restrictions on the use of each lot or parcel pursuant to a
general plan or scheme of development; each grantee may then enforce the restrictions against each

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other grantee. Lehman v. Wallace, 510 S.W.2d 675. 680-81 (Tex. Civ. App. – San Antonio 1974, writ
ref’d n.r.e.). The Adams do not claim that their subdivision lot and Wasson’s tract are part of a
common plan or scheme of development that would give the owners therein a reciprocal right to
enforce restrictions.
Discussion
       When the City (the covenantee) granted the subject 3.014 acres to M. G. Moore (the
covenantor), there was a mutual relationship to the same rights in the property described in the grant.
Hence they were in privity of estate as to the 3.014 acres. As successor coventor to the interest of M.
G.. Moore, Wasson succeeded to the burden imposed by the covenant and is in privity of estate with
the City.
       The Adams’ predecessor, who held the leasehold in 1983, was not a party to the grant to M.G.
Moore or the covenant therein created. When the covenant was made in 1983 burdening the 3.014
acres, there was no mutuality of interest in the tract between the then current lessee of the Adams’
subdivision lot and M. G. Moore. Therefore, the Adams have not succeeded to the interest of the City
as convenantee in the estate created in 1983 grant containing the restrictive covenant.
       The Adams argue that since they and Wasson both derive title from the City, they are in privity
of estate. But privity of estate requires more than a common source of title. As successors to Bill
Canino, the coventor in the covenants created in 1962 in the original grant by the City of their
subdivision lot, they are successor as covenantors to the burdens he assumed in the 1962 covenant.
Hence, they are in privity of estate with the City under the 1962 covenant. But they are not successor
covenantees to the rights of the City, the original coventee, in the covenant created in the City’s 1983
grant to M.G. Moore. Therefore, there is no privity of estate between the Adams and Wasson. The
Adams lack standing to enforce the covenants restricting the use of Wasson’s 3.014 acre tract.
       The Adams argue that since they and Wasson both deraign title from the City, they are in
privity. But privity of estate requires more than a showing of a common source of title.
       Wasson’s first issue is sustained. Since we have held that the Adams had no standing to bring
suit for the enforcement of the deed restrictions, we need not address Wasson’s second issue.


                                             CONCLUSION
       The judgment is reversed and the case is dismissed. It is also ordered that the permanent
injunction affecting the 3.014 acre tract owned by Appellants be and is hereby dissolved.



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                                                                           BILL BASS
                                                                              Justice



Opinion delivered July 3, 2013.
Panel consisted of Griffith, J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.




                                                        (PUBLISH)




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                                  COURT OF APPEALS
        TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                            JUDGMENT
                                                JULY 3, 2013

                                         NO. 12-12-00076-CV

                             WASSON INTERESTS, LTD.,
                                      Appellant
                                         V.
                       KELLY W. ADAMS AND KAREN ADAMS,
                                      Appellees
      ________________________________________________________________________

                                Appeal from the 2nd Judicial District Court
                          of Cherokee County, Texas. (Tr.Ct.No. 2011-03-0186)
       ________________________________________________________________________
                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of the Court that there was error in the
judgment as entered by the trial court below and that the same should be REVERSED and judgment
DISMISSED.
                        It is therefore ORDERED, ADJUGDED and DECREED by the Court that the
judgment of the trial court in favor of Appellees, KELLY W. ADAMS AND KAREN ADAMS, be,
and the same is, hereby REVERSED and judgment is DISMISSED that the Appellees take nothing.
                        It is further ORDERED, ADJUDGED and DECREED that THE
PERMANENT INJUNCTION AFFECTING THE 3.014 ACRE TRACT OWNED BY
APPELLANTS BE AND IS HEREBY DISSOLVED. All costs in this cause are adjudged the
Appellees, KELLY W. ADAMS AND KAREN ADAMS, for which execution may issue; and that
this decision be certified to the court below for observance.
                        Bill Bass, Justice.
                     Panel consisted of Griffith, J., Hoyle, J. and Bass, Retired J.,
                     Twelfth Court of Appeals, sitting by assignment.




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