Barham v. Reames
| Decision Date | 01 March 1963 |
| Docket Number | No. 16387,16387 |
| Parties | Troy BARHAM et ux., Appellants, v. Rodney REAMES et al., Appellees. |
| Court | Texas Court of Appeals |
Wiley Thomas, Angleton, for appellants.
Goff & Koonce and Robert C. Koonce, Angleton, for appellees.
Suit was instituted by plaintiffs Reames, Brothers and Davidson for permanent injunction to prohibit defendants Barham and wife from conducting a beauty parlor business in a building on their lot in violation of certain restrictions, covenants and conditions common to the Addition. Defendants admitted the violation but defended upon the grounds of laches, waiver and abandonment of restrictions.
Plaintiffs' motion for instructed verdict was overruled and the case was submitted to the jury on the question of waiver by the plaintiffs. The jury was unable to agree, whereupon the court rendered judgment for plaintiffs. The judgment recited there was no evidence to prevent enforcement of the restrictions by the plaintiffs who relied on said restrictions.
On appeal the defendants contend the court erred in rendering judgment for plaintiffs because there was evidence to support their pleaded defenses.
Chevy Chase Subdivision Section III is comprised of 5 blocks in the City of Angleton, Brazoria County.
Block 1 is the southernmost block and is abutted on the north by Southhampton Road; Block 2 is north of Block 1, and is abutted on the south by Southhampton Road and on the north by Wimberly Road; Blocks 3 and 4 are further north; and Block 5 is a long block running north and south across North Tinsley Street and west of the other Blocks.
Defendants own Lot 20 in Block 1, and it faces on Southhampton Road. North Tinsley Street runs along the west side of defendants' lot.
Plaintiff Reames owns Lot 21, Block 1, and adjoins defendants' lot on the east. Plaintiff Davidson owns Lot 1, Block 1. Said lot is immediately south of defendants' lot. Brothers owns lots and parts of lots in Block 5 across North Tinsley Street from defendants' lot.
Another person was operating and had operated a beauty parlor known as Jewell's on the north side of Wimberly Road for more than four years. She had converted her garage into a beauty parlor. Some of plaintiffs, or their wives, knew of such operation. Said parlor was in Block 3 and was a block north and approximately one-half block east of defendants' lot, and about the same distance from plaintiff Reames' lot. It was still further from plaintiff Brothers' lot.
Witness Carr, employee of Dow Chemical Co., did some part-time air-conditioning and refrigeration service from his family garage in the same block in which defendants and plaintiff Reames resided. 'They come and get him * * * or he goes to their house.' Another resident on Southhampton, across the street from defendants, did some TV repairs 'from his home'; he had no machinery and equipment. Plaintiff Brothers used one-half of his two car garage for woodworking hobby.
In Hemphill v. Cayce, Tex.Civ.App., 197 S.W.2d 137, this court had before it a case in which appellant showed 17 violations to carry out his defense of waiver. It was held: ...
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