Green v. Gerner

• Decision Date: 25 March 1926
• Docket Number: (No. 8922.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: GREEN et al. v. GERNER et al.
• Court: Texas Court of Appeals

283 S.W. 615

GREEN et al. v. GERNER et al.

(No. 8922.)^*

Court of Civil Appeals of Texas. Galveston.

March 25, 1926.

Rehearing Denied April 22, 1926.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit for injunction by Charles J. Gerner and others against Joe M. Green and another. From an order granting a temporary injunction, respondents appeal. Affirmed.

Vinson, Elkins, Sweeton & Weems, of Houston, for appellants.

Campbell, Myer & Simmons, of Houston, for appellees.

PLEASANTS, C. J.

This suit was brought by appellees against appellants to restrain them from erecting an apartment building upon lots in the city of Houston near to property owned by appellees, and within an addition in said city set apart for residential purposes, and sold and conveyed by deeds containing restrictions as to the character of buildings that might be erected therein, which the petition alleges deprive appellants of the right to erect the building which they are preparing to construct in said addition.

The allegations of the petition need not be specifically here stated, as no question of its sufficiency is raised by appellants if the facts therein stated and proven upon the trial show that the building which appellants were undertaking to erect comes within the restrictions contained in the deeds under which appellees and appellants hold title to their respective premises.

The appellants answered by general demurrer, special exceptions, and general denial, and by special pleas of estoppel and waiver, the substance of which will be more fully hereinafter shown.

This appeal is from an order of the court granting appellees a temporary injunction upon a hearing had on appellees' application.

The following facts were shown on the hearing:

The appellees all own property in Roseland addition in the city of Houston fronting what was originally known as Myrtle street, and is now known as the extension of Montrose boulevard.

The appellees Charles J. Gerner and wife own lots 9 and 10, block 47, Roseland addition, and the appellee Eugene C. Dowman owns lot 12 and the north half of lots 9 and 8 in block 46, and R. R. Ratliff, appellee, owns lot 10, part of 9 and 11 in block 46. The proposed apartment to be built by the appellant Joe M. Green is to occupy lots 6 and 7 in block 47 of said addition. The appellees have erected on their respective properties attractive homes, which are occupied by their families.

The deeds through which each of the appellees and the appellant Joe M. Green deraigned title to their respective lands, among other restrictions not material to this inquiry, contain the following restrictions:

"No business house, church house, school house, sanitarium, hospital, saloon, place of public entertainment, livery stable, resort or dance hall, or other place of business of any kind or character shall be erected or maintained on the property herein conveyed, or any part thereof.

"The property herein conveyed is sold for residence purposes only, and no building other than one residence with the necessary and appurtenant out buildings and improvements shall occupy the lots herein sold, and said improvements shall cost not less than $6,000."

There is no restriction on building in this addition other than that contained in the deeds, and no testimony of any restriction other than that contained in the deeds was introduced upon the trial of this cause.

The appellant Joe M. Green testified:

"The apartments in the house I contemplate building are to be four-room apartments. They have a living room, dining room, bedroom, and kitchen, bath and closets. Two down stairs to the right entrance, two down stairs to the left entrance, and four up stairs. There are four apartments on each floor. If you walk in the entrance and hold your hand above your head to the right is four and to the left is an exact duplicate of the four. With reference to the exterior of the house showing at a glance that there was small windows for bathrooms to match each other on the front and back sides, I would want to know at what angle before I answered that. With reference to the same angle that we look at the other buildings, that you could see up stairs and down stairs there was small windows for the bathroom, my answer is, you could tell it was an apartment house, or built for that purpose. I have not as yet determined what rent we would get for the apartments. I have estimated that. I figured the smallest amount we would get would be $75 per month."

The allegations of appellees' petition, with reference to said apartment, are as follows:

Plaintiffs allege that the defendant Joe M. Green and the Russell Brown Company, a contracting and building firm employed by the said Joe M. Green, in disregard of the aforesaid covenants, restrictions, and general plan, and in disregard of the rights of these plaintiffs, and each of them, and of all other lot owners in said addition similarly situated, have threatened to erect, and have actually commenced work on the foundation of, a building to contain eight apartments or flats, which said apartments or flats these plaintiffs are informed and believe are to be rented and leased to various and sundry persons.

Plaintiffs also allege that the construction of an apartment building, consisting of eight apartments or flats, or any other number, erected for rental purposes, is a direct and flagrant violation of the covenants and restrictions contained in the deed, and also of the general plan of the said addition.

The evidence shows that appellees have erected costly homes on their respective premises, which will be made much less desirable and their value materially depreciated if appellants are permitted to construct the apartment house contemplated by them. The right of the owners of property in a restricted district to prevent the violation of the restrictions by injunction is well settled, and is not questioned by appellants.

Their contention is that restrictive covenants in deeds which deprive the owner of the free use of his property should be strictly construed against the maker of the deed, and that, when so construed, the restrictive covenants in appellants' deed do not prohibit the construction of an apartment building of the kind appellants are undertaking to erect. This contention is based on the theory that, because the appellants' apartment building is for residential purposes only, and is but one building, it is not obnoxious to the provision in the deed that "no building other than one residence with the necessary and appurtenant out buildings and improvements shall occupy the lots herein sold." Appellants cite cases from other states which support their contention, but we prefer to follow the line of cases which give to the language used in covenants of this kind the meaning in which it is ordinarily understood and interpreted, and upholds and enforces the contract as...