Arrington v. Cleveland

• Decision Date: 20 July 1951
• Docket Number: No. 15260,15260
• Citation: 242 S.W.2d 400
• Parties: ARRINGTON et al. v. CLEVELAND et al.
• Court: Texas Court of Appeals

Page 400

242 S.W.2d 400

ARRINGTON et al. v. CLEVELAND et al.

No. 15260.

Court of Civil Appeals of Texas, Fort Worth.

July 20, 1951.

Rehearing Denied Sept. 21, 1951.

Bryan, Stone, Agerton & Parker, of Fort Worth, for appellant Ethel Cloer.

Cantey, Hanger, Johnson, Scarborough & Gooch, of Fort Worth, for appellant Dera Arrington.

Samuels, Brown, Herman & Scott and Ardell M. Young, all of Fort Worth, for appellees.

CULVER, Justice.

Suit by Courts Cleveland and wife and other property owners in the Hillcrest Addition sought to enjoin the appellants Dera Arrington and Ethel Cloer from violating a covenant restricting their property to residential use. The land involved is triangular in shape with its hypotenuse lying along Camp Bowie Boulevard, admittedly one of the most heavily traveled highways in the city, and being Lot 34, Block 13, Hillcrest Addition to the city, less the south fifty feet which is owned and occupied as a residence by appellees Cleveland and wife.

The Court directed a verdict in favor of appellees and granted a permanent injunction restraining appellants from conducting any commercial or business ventures on the property in question.

Appellants base their appeal upon the alleged error of the trial court in granting the motion for the instructed verdict. They assert that the testimony raised material issues of fact which should have been submitted to the jury, namely: (1) Laches, estoppel and statutory limitations precluding appellees from enforcing the restrictive covenants as to the specific lot in question. (2) Waiver and estoppel of the restrictive covenants as to the whole of Hillcrest Addition by the numerous and long-continued uses of lots therein for commercial purposes. (3) Use of the premises as being consistent with the meaning and spirit of the restrictive covenant, though being put to other incidental use. (4) Laches on the part of appellees as to appellant Cloer.

The evidence discloses that in 1945, one Martin purchased this property and for some two years operated a beauty parlour on the lower floor and with his family resided upstairs. In the fall of 1947, finding that he could not enlarge the building conformably to city zoning ordinances, he sold the property to a Mrs. Baker who used it for a short time, both as a residence and as a reducing salon. In February, 1948, the property was purchased by appellant Mrs. Arrington, who resided there and took orders for cakes and candies, which she made on the premises and delivered to her customers. There was also conducted on the premises during Mrs. Arrington's occupancy, for an undisclosed period of time, a beauty shop known as Loretta's. In the summer of 1949, Mrs. Arrington vacated the property and went to Oklahoma. Based on this testimony, appellants say that the two and four year statutes of limitations bar the granting of this injunction. Article 5526, Vernon's Civil Statutes, reads: 'Actions of trespass for injury done to the estate or the property of another' must be commenced and prosecuted within two years after the cause of action shall have accrued. Article 5529 provides: 'Every action * * * for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.' In our opinion, the two year statute would not apply. The injury here is not strictly one of trespass, but is the asserted violation of rights and duties growing out of the written contract. WELSH V. STEWART, TEX.CIV.APP., 178 S.W.2D 581. ¹ Eidelbach v. Davis, Tex.Civ.App., 99 S.W.2d 1067. In any event, however, we conclude that under the present circumstances neither statute can be invoked. In the first place, considering the testimony most favorably to appellants, it does not show with any degree of certainty that a beauty shop or any related activity was conducted on the premises continuously for a period of four years. Holstein v. Adams, 72 Tex. 485, 10 S.W. 560. Secondly, the services rendered by a beauty shop differ widely in character from the business maintained by the defendant Mrs. Cloer who is operating a store, selling paints and wall paper by retail, with a stock of pottery exhibited for sale outdoors. Briggs v. Hendricks, Tex.Civ.App., 197 S.W.2d 511.

Since 1946, six suits have been filed involving these restrictions on lots in Hillcrest Addition in the immediate vicinity of appellants' lot. All have been terminated favorably to the contentions of these appellees. Two were tried and appealed. Hemphill v. Cayce, Tex.Civ.App., 197 S.W.2d 137; Walker v. Dorris, Tex.Civ.App., 206 S.W.2d 620. Two were tried in the 96th District Court in the fall of 1950, and the others dismissed on terms satisfactory to the protesting property owners. Practically all of the asserted violations throughout the Hillcrest Addition testified to in the present case were also in evidence in the other trials and especially in those of Hemphill v. Cayce and Walker v. Dorris, supra. The latter case being tried before a jury, an instructed verdict was upheld by this Court. See also Klein v. Palmer, Tex.Civ.App., 151 S.W.2d 652, par. 4 and 5; Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506.

The appellants contend that the evidence would warrant a finding by the jury that the value of this property for residential purposes had been destroyed, and accordingly, that it would be inequitable and oppressive to give effect to the restriction. This contention is overruled. The facts show without dispute that the property has at all times and is now being used, at least partly, for residential purposes. It must be conceded that this particular lot would sell for a greater price if the restrictions were removed and it could be devoted entirely to business uses. This is true of other lots in the addition lying along Camp Bowie...