Couch v. Southampton Civic Club, 3495
| Decision Date | 20 March 1958 |
| Docket Number | No. 3495,3495 |
| Citation | 313 S.W.2d 360 |
| Parties | O. Dean COUCH, Jr., et al., Appellants, v. SOUTHAMPTON CIVIC CLUB et al., Appellees. |
| Court | Texas Court of Appeals |
Allen & Allen, Houston, for appellants.
Elledge, Urban & Bruce, Williarm E. Loose, Houston, Angus McSwain, Jr., Abner V. McCall, Waco, for appellees.
This is a case in which the meaning of restrictions imposed upon a residential area is the issue. Parties will be referred to as in the Trial Court. Southampton Civic Club et al. as plaintiffs filed seven separate suits against the defendants herein, to enjoin them from keeping roomers in their homes, alleging and contending that the keeping of roomers in homers located in the Southampton Addition, was violative of the restrictions incorporated in or contained in the deeds to the properties involved. The Trial Court consolidated all seven suits and tried same as single cause. The Trial Court refused to hold as a matter of law that the restriction permitted residents in the addition to keep roomers; refused to submit to the jury an issue tendered by defendants as to whether the restriction prohibited roomers on defendants' premises; and submitted only to the jury whether the restriction had been waived in the addition. The jury found that the restriction had not been waived and the Trial Court entered judgment for plaintiffs enjoining defendants from keeping roomers in their homes. Defendants appeal, contending: 1) The restriction as a matter of law does not prohibit residents from having roomers in their homes. 2) Whether or not the restriction prohibits roomers is a question of fact which should have been submitted to the jury.
At the outset we say that whether or not the restriction prohibits roomers is a question of law and not a question of fact, and hence is not the proper subject for a jury issue. Contention 2 supra is accordingly overruled.
We revert now to the defendants' 1st contention, that the restriction, as a matter of law, does not prohibit residents of the Southampton Addition from having roomers in their homes.
Pertinent portions of the restrictions herein are:
'* * * That whereas the said First Party has originated a plan or project to purchase, improve and subdivide a high-class residential and business community, * * *'
'In Article VI., ' Basic Restrictions', after stating that 'in furtherance of the plan for the improvement of the property herein described, the following basic restrictions are hereby declared * * *' which are here set out in full:
'(a) That there shall never be erected, permitted, maintained or carried on upon any of said property any saloon, or place for the sale or manufacture for sale of malt, vinous, or spirituous liquors; any foundry, brick yard, cemetery; any establishment for the care of cure of persons affected with tuberculosis, or any institution for the care or restraint of the mentally impaired, or any detention home, reform school, asylum, or any institution of like or kindred nature; nor any slaughter house or tannery or any noxious interest, trade or business.
'(b) That no part of said property shall ever be used for the purpose of wholesale or retail business of any kind excepting such portions as may be especially designated by the First Party * * *'. (It is undisputed that no business designations were ever made).
'No apartment house or duplex will be permitted in the Addition; the object of this provision being to prohibit multiple housing throughout the entire Addition.'
Controversies arising out of the restrictions covering Southampton Addition have been before the appellate courts on prior occasions.
In Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, W/E Refused, the Galveston Court held that use of the property for business purposes was unauthorized and prohibited by the restrictions, and that use of the property for business purposes should be enjoined.
In Rudy v. Southampton Civic Club, Tex.Civ.App., 271 S.W.2d 431, 432, W/E Ref. NRE, this court held that the restriction:
'No apartment house or duplex will be permitted in the Addition; the object of this provision being to prohibit multiple housing throughout the entire Addition',
prohibited the use of the property for apartments.
In the case at bar the facts are undisputed that the defendants were renting rooms in their main dwelling or servants' quarters to students in Rice University.
The question for determination here is whther or not the restriction, supra, prohibits the renting of rooms in the home. The restrictions are set forth supra in some detail primarily out of deference for the contention of plaintiff that the use of the expression 'First Party has originated a plan * * * to subdivide a high-class residential and business community * * *', has some bearing on this case. We do not think that the expression 'high-class' adds any restriction to the use of the property other than the restrictions specifically enumerated. See 14 A.L.R.2d p. 1386, and cases there collated.
We now examine the restriction:
'No apartment house or duplex will be permitted in the Addition; the object of this provision being to prohibit multiple housing throughout the entire Addition',
in an effort to determine whether or not it prohibits the renting of rooms to Rice students. The record is undisputed and reflects that some of the defendants had rented to one student, others to two, others to three, and one to as many as six. The record reflects that there was no cooking; that the students merely rented the room or the right to stay in the room; that the defendants maintained supervision and control over the entire premises; that the renting to the students was incidental to the defendant's enjoyment and occupancy of the house as his or her home.
Plaintiffs contend that the foregoing restriction limits the use of the lot to a 'single family residence', and that the renting of rooms to the Rice students by defendants is violative of the restrictions. Plaintiffs further contend that the Rudy and Pardo cases, supra, are directly in point to sustain such contention. We do not so interpret or read the Rudy and Pardo cases, and if such cases do so sustain plaintiff's contentions, then the language relied on is dicta.
In construing the restriction before use we must follow recognized rules of construction or interpretation. The first rule is to seek to arrive at the intention of the parties to the end that their purpose may be effectuated, and the intention of the parties must be gathered from the instruments as a whole. If there is uncertainty, the construction most favorable to the grantee must prevail, for the grantor selects his own language, and...
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