Curb v. Benson, 12693
| Decision Date | 22 March 1978 |
| Docket Number | No. 12693,12693 |
| Citation | 564 S.W.2d 432 |
| Parties | Dock L. CURB et al., Appellants, v. Carl F. BENSON et al., Appellees. |
| Court | Texas Court of Appeals |
Lee Curtis, Curtis & Wade, Belton, for appellants.
Frank Roberts, Rick Morris, Piperi, Roberts & Morris, Killeen, for appellees.
This appeal involves the construction of a restrictive covenant requiring, among other things, that ". . . all residences shall be built in place." The covenant appears in the 1968 dedication of a subdivision known as Lakeview Terrace, located in Bell County.
Appellants, Dock L. Curb and wife, Ruby Mae, and Cecil A. Massie and wife, Nina, own property in Lakeview Terrace, as do appellees, Carl F. Benson and wife, Faith. In the autumn of 1976, appellees Benson entered into a contract with appellee Jack Morris for the purchase of a "prefabricated" or "specially-built" house. By the terms of the contract, Morris agreed to move the house, in two sections, onto appellees' lot in the subdivision. After Morris had completed the job, appellants sued the Bensons in the district court of Bell County seeking an injunction ordering appellees Benson to remove the house. After trial, the court entered a take-nothing judgment. In support of the judgment the district court concluded that the Benson house ". . . was built in place on said lot," and, as a result, was not in violation of the restrictive covenant.
Appellants claim that there was no evidence to support the district court's finding that the Benson house was "built in place." Accordingly, appellants urge, the court erred in concluding that the Benson house was not in violation of the restrictive covenant.
As in other written instruments, the end sought in the construction of restrictive covenants is the ascertainment of the intent of the parties as revealed by the language used in the covenant. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.1928). Words and phrases used in a restrictive covenant will be accorded their ordinary and commonly accepted meaning. Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014 (1925). The rule that restrictive covenants are strictly construed, favoring the grantee and against the grantor and resolving all doubts in favor of the free and unfettered use of the premises, is applicable only when the intent of the parties is not ascertainable from the terms of the covenant. Atkins v. Fine, 508 S.W.2d 131 (Tex.Civ.App.1974, no writ). This Court, then, must examine the words, "built in place," in their ordinary and popular sense as of 1968, together with what those words necessarily imply. Green Avenue Apartments v. Chambers, 239 S.W.2d 675 (Tex.Civ.App.1951, no writ).
The parties disagreed on a description of the Benson house. Morris rejected the term, "prefabricated" house, and instead, he preferred the term, "specially-built" house. Morris described the building of his houses as beginning on an "assembly line" located at McGregor, Texas, and finally "winding up" on the...
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