Braswell v. Woods, 11842.

• Decision Date: 09 January 1947
• Docket Number: No. 11842.,11842.
• Citation: 199 S.W.2d 253
• Parties: BRASWELL v. WOODS.
• Court: Texas Court of Appeals

Page 253

199 S.W.2d 253

BRASWELL v. WOODS.

No. 11842.

Court of Civil Appeals of Texas. Galveston.

January 9, 1947.

Rehearing Denied February 6, 1947.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Action by Frank R. Woods against B. W. Braswell to enjoin defendant from operating a florist shop on premises contrary to restrictions in deed. From a judgment for plaintiff, the defendant appeals.

Affirmed.

K. C. Barkley, Gordon A. Dotson, Herbert G. Tigner, Vinson, Elkins, Weems & Francis and Tarlton Morrow, all of Houston, for appellant.

Blades, Chiles, Moore & Kennerly, Fred W. Moore and Reagan Cartwright, all of Houston, for appellee.

MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Harris County granting the application of appellee, Frank R. Woods, for a permanent injunction restraining appellant, B. W. Braswell, from maintaining and operating a florist shop on Lot 26 in Block 29 of Riverside Terrace Addition to the City of Houston.

Appellee alleged that he had purchased Lot 25 in Block 29 of said Riverside Terrace Addition subject to the restriction that no business house or place of business of any kind should be constructed, kept or maintained in said addition and that the property therein would be used for residence purposes only; that appellant had purchased Lot 26, which adjoined said Lot 25, and was subject to the same restrictions, and had constructed a combination residence and business house thereon and that he was using said building both as a residence and as a place to carry on a business, namely a florist shop.

In his answer appellant alleged that the business conducted by him did not come within the purview of the restrictions set out in the deed under which he had purchased said property; that, while said addition had been placed on the market as high class residential property under restrictions constituting a general plan, owing to the growth and development of the City of Houston in the vicinity in which it was located, such restrictions had been generally waived and violated by appellee and other owners of property therein by failing to object or take legal action to prevent the use of the property within the addition for various business purposes.

At the close of the testimony the court granted appellee's motion for an instructed verdict and, upon the verdict thus returned, rendered judgment permanently enjoining appellant from maintaining and operating a florist shop or any other business on said premises until the termination of the restrictions.

The trial court found in the judgment rendered that the violation of the restrictions within the addition were unsubstantial and trivial in character; that there was no such changes in the character of the property as would render it unfit or unsuitable for residential purposes, and that there had been no abandonment or waiver of such restrictions or of appellee's right to enforce them.

Riverside Terrace Fourth Section was placed on the market by the Guardian Trust Company under a plan to restrict the addition to the building of private residences. All deeds made to purchasers of lots therein, including the deed to appellant to Lot 26 and the deed to appellee to Lot 25, contained the following restrictions and covenants:

"Provided, further, nevertheless, that the conveyance hereby made shall be subject to the following restrictions, covenants, easements and conditions, which shall be, continue and remain in effect until January 1st, 1950, that is to say:

"(a) No business house, sanitarium, hospital, saloon, place of public amusement or entertainment, livery stable, factory, warehouse, duplex house, apartment house, or place of business of any kind, shall be constructed, built, kept or maintained on the premises hereby conveyed, nor shall any house on the premises be used for any such purposes, but the same shall be used for residence purposes only. Any residence or main building constructed on the lot or lots herein conveyed shall be of either stucco, hollow tile, concrete, brick, brick veneer, rock or rock veneer construction.

"The grantee accepts this conveyance subject to the restrictions, easements, covenants and conditions above set forth, which it is agreed shall be deemed to be covenants running with the land, and for himself, his heirs and assigns, covenants to and with the grantor and its assigns that he will and that his heirs and assigns shall forever faithfully observe and perform said several restrictions and conditions, and each of them, and if grantee or any other person claiming under him shall at any time violate, or attempt to violate, or shall omit to perform or observe any of the foregoing restrictions or conditions, it shall be lawful for any person owning land, which is subject to the same restrictions, or conditions in respect to which default is made, or for the grantor herein, to institute and prosecute appropriate proceedings at law or in equity for the wrong done or attempted."

Appellant...