796 S.W.2d 465 (Tex. 1990)
In September 1947, Stanley and Sarah Agnes Hornsby, together with Charles and Bernice McCormick, platted Beby’s Ranch Subdivision No. 1 from their commonly owned property in Travis County, Texas.1 The plat divided the peninsula-like tract extending into Lake Travis into seven blocks labeled A through G.2 Blocks A, B, and G were subdivided into thirty-one lots, all of which had lake frontage.3 Blocks C, D, E, and F remained unsubdivided.4 Block F, located on a hill and surrounded by lakefront lots, became known as the hilltop.5
In October 1947, the Hornsbys and McCormicks partitioned the subdivision by deed.6 The McCormicks received blocks A, B, and C.7 The Hornsbys received blocks D, E, F, and G.8 Over the next several years, the Hornsbys and the McCormicks conveyed twenty-nine parcels of land from Beby’s No. 1 to third parties or one another.9 Each deed from the Hornsbys and the McCormicks contained substantially the same restrictive covenants.10 These included covenants prohibiting business or commercial use of the land conveyed.11 They restricted the land to residential use with only one dwelling per lot.12 They provided that the restrictions could be changed by three-fourths of the property owners voting according to front footage holdings on the 715 contour line of the lake.13 In 1946 the McCormicks had conveyed two of the lakefront lots unburdened by any deed restrictions.14 When the original grantee conveyed the two lots to third parties in 1954, the deeds contained the restrictions.15
The Hornsbys retained ownership of lots 4 through 8 in Block G and all of Block F.16 Both Hornsbys are now deceased, and the retained property passed to their devisees.17 The present dispute arose when the Hornsby devisees contracted to sell Thomas R. Pollock all of Block F and lots 4 and 5 in Block G for the purpose of building a marina, private club, and condominium development.18 Charles Evans and other owners whose deeds contained the restrictive covenants sued for equitable relief under the implied reciprocal negative easement doctrine.19 They sought a declaration that the restrictive covenants were implied upon the Hornsby retained property.20 They further sought an injunction to prevent the Hornsby devisees from conveying the property without such deed restrictions.21
Trial was to the court.22 The testimony sharply conflicted as to Stanley Hornsby’s oral representations of his intentions for the retained property.23 The trial court filed numerous findings of fact.24 The restrictions at issue were part of a general plan for development of the subdivision by the original subdividers.25 The general plan of development was that all lakefront property within the subdivision be burdened with the same restrictions.26 Stanley Hornsby and his real estate broker represented to purchasers that all lakefront parcels were restricted to residential use only.27 Non-enforcement of the general plan of development as to the lakefront lots will decrease the value of the lots purchased and presently owned by Plaintiffs Arnold and Kay Sousares.28 The trial court rendered judgment declaring that the restrictions at issue applied to the five lakefront lots owned by the Hornsby devisees and enjoining them from conveying any interest in the lots without including the restrictions in the conveyance.29
All parties appealed the judgment.30 The court of appeals reversed and rendered judgment that plaintiffs take nothing, holding that none of the retained lots were restricted.31 The court of appeals reasoned that for the implied reciprocal negative easement doctrine to apply, the original grantors had to have intended that the entire subdivision be similarly restricted.32
Whether the doctrine of implied reciprocal negative easements requires that the general plan of development apply to the entire subdivision tract?33
The doctrine of implied reciprocal negative easements applies when an owner of real property subdivides it into lots and sells a substantial number of those lots with restrictive covenants designed to further the owner’s general plan or scheme of development.34 The lots retained by the owner, or lots sold by the owner from the development without express restrictions to a grantee with notice of the restrictions in the other deeds, are burdened with an implied reciprocal negative easement.35 They may not be used in violation of the restrictive covenants burdening the lots sold with the express restrictions.36 There need only be a clearly-defined restricted district to which the restrictions apply as part of the plan of development.37 Some lots of which are either retained by the owner-developer or sold to a purchaser with actual or constructive notice of the restrictions.38 For the doctrine to apply as to those lots.39
No. In September 1947 Stanley and Sarah Agnes Hornsby together with Charles and Bernice McCormick platted Beby’s Ranch Subdivision No. 1.40 The plat created a peninsula-like tract with seven blocks.41 All subdivided lots in blocks A, B, and G had lake frontage.42 Block F on the hilltop remained unsubdivided and was surrounded by lakefront lots.43
In October 1947 the owners partitioned the blocks.44 The Hornsbys received the hilltop block F along with lakefront blocks D, E, and G.45 Over the next several years the owners conveyed twenty-nine parcels.46 Each deed imposed substantially uniform restrictive covenants limited to residential use.47
Voting rights under the covenants attached only to lakefront lots along the 715 contour.48 The Hornsbys retained five lakefront lots in block G and the entire hilltop block F.49 The Hornsby devisees later contracted to sell the hilltop and two lakefront lots to Pollock for a marina and condominium project.50 The trial court found the restrictions formed part of a general plan limited to lakefront property.51
It declared the restrictions applied to the five retained lakefront lots.52 The court of appeals reversed.53 It held the doctrine inapplicable because the plan did not cover the entire subdivision.54 Texas cases establish that the restricted district need not encompass the whole tract.55
Curlee v. Walker treated eighteen blocks as the restricted district.56 Hooper v. Lottman limited the district to lots fronting one street.57 The trial court findings confirm the plan applied only to lakefront lots.58 Representations to buyers excluded the hilltop.59
The doctrine therefore applies to the retained lakefront lots without requiring the hilltop to be included.60
The doctrine of implied reciprocal negative easements does not require that the general plan of development apply to the entire subdivision tract.61
Related opinions on this issue
Justice Gonzalez dissented for the reasons stated in the court of appeals opinion.62
Whether a general plan of development for purposes of the implied reciprocal negative easement doctrine must exist from the inception of the subdivision?63
The requirement that the general plan exist from the inception of the subdivision applied only in the factual context of the notice case in Davis v. Huey involving express restrictive covenants recorded on the plat for an entire subdivision.64 The statement in Davis should not be read out of the context of that notice case.65 It is not required that the general scheme or plan must exist when the subdivision is platted or from the inception of the subdivision for the implied reciprocal negative easement doctrine to apply.66
No. The court of appeals holding was construed as requiring that the developer-grantors intended from the inception of the subdivision that there would be specific restrictions that applied to all property within the subdivision.67 Davis v. Huey was a notice case.68 The developer had used an architectural approval requirement to impose an additional setback beyond what existed when the purchasers bought their lot.69 The requirement that the general plan exist from the inception of the subdivision applied only in that factual context of establishing notice.70
In this case two lots were sold without restrictions before the owners formulated their general scheme or plan of development.71 Yet the trial court found the restrictions were part of a general plan limited to lakefront property.72 The court reviewed the record and found there is some evidence to support all trial court findings that were attacked.73
A general plan of development for purposes of the implied reciprocal negative easement doctrine need not exist from the inception of the subdivision.74