Davis v. Hinton

• Decision Date: 16 January 1964
• Docket Number: No. 14,14
• Citation: 374 S.W.2d 723
• Parties: William M. DAVIS, Appellant, v. Lloyd HINTON et al., Appellees.
• Court: Texas Court of Appeals

Page 723

374 S.W.2d 723

William M. DAVIS, Appellant, v. Lloyd HINTON et al., Appellees.

No. 14.

Court of Civil Appeals of Texas, Tyler.

Jan. 16, 1964.

Rehearing Denied Feb. 6, 1964.

Earl Luna, Luna & Vaughn, Dallas, for appellant.

Robert H. Thomas, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellees.

MOORE, Justice.

This is an injunction suit instituted in the court below by Lloyd Hinton and other property owners in the Valley View Addition Nos. 1, 2 and 3 of the City of Farmers Branch in Dallas County, Texas, seeking a permanent injunction to enjoin William M. Davis, defendant (appellant herein) from violating the deed restrictions on Lot No. 4, Block 1, owned by him and situated in said Addition.

The plaintiffs in the suit allege that the defendant Davis violated deed restriction No. 1 and restriction No. 3, which restrictions read as follows:

'1. All lots in the Tract shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential building plot other than the 1 detached single-family dwelling not to exceed two stories in height and a private garage for not more than two cars and other necessary out-buildings incidental to single family use;'

'3. No noxious or offensive trade or activity shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.'

Plaintiffs allege that defendant was using said property as a business or a commercial establishment in violation of said restrictions. The defendant denied that he was violating the restrictions and pleads waiver of the restrictions and laches on the part of the plaintiffs, and further pleads that due to the changed conditions in the beighborhood, the property in the restricted area has become unsuitable for residential purposes and the restrictions should not be enforced.

Defendant admitted that he was not using the property as his residence; he also admitted that he is renting the living room, dining room and kitchen for $50.00 per month to a Mrs. Flynn who conducts a commercial art business; that in one of the bedrooms he conducts his bookkeeping and accounting business and rents a portion of the room for $50.00 per month to a Mr. Wilsie, a manufacturer's representative, and that since the date of the filing of this suit he had rented the remaining bedroom to his brother, a single man, who now lives in the room. In response to a request for admission, he also admits that the house is now being used by him for purposes other than a 'single family dwelling'. The evidence shows that there was a sign in the yard on which was printed the following: 'Davis Bookkeeping Tax Service', 'M.R.L. North Texas', 'Art Studio' and a separate sign which read: 'Office for Rent'.

In a trial before a jury, at the conclusion of the plaintiffs' testimony, defendant Davis moved for an instructed verdict which was overruled by the court. At the conclusion of all the testimony both plaintiffs and defendant made motions for instructed verdicts or, in the alternative, that the court withdraw the case from the jury and render judgment. The Trial Court withdrew the case from the jury and rendered judgment for the plaintiffs, permanently enjoining defendant Davis from using said property 'for any purpose other than a single family residence, except that the said Defendant, or any other person, if he uses said property as his residence, may carry on such business of his own as may be incidental to the primary or principal use of said property as a single family residence or dwelling. * * *' provided no noxious trade or activity is carried on upon the property.

By his first, second and third points of error, appellant contends that the Trial Court was in error in overruling his motion for instructed verdict, because there was no evidence, or at least insufficient evidence, to support the judgment for the plaintiffs in that there was no proof that the activity of the defendant was noxious or offensive, and further contends that since the restriction in the deed did not restrict the use of the premises but only restricted the type of structure that could be placed thereon, and that since he had not changed the type of structure to something other than residential, there was no evidence of a violation of the restriction. In the alternative, he contends that there is no evidence of a violation because, since his brother resides in one of the rooms it is being used as a residence.

It is true there was no proof in the record showing that the activity carried on on the premises was noxious or offensive, as such, and the appellees do not so contend. They do contend, however, that there is a definite violation of restriction No. 1, and they are being damaged thereby.

The solution to the problem will depend upon the interpretation to be given the restriction in question.

In 26 C.J.S. Deeds Sec. 164(3) a considering restrictive covenants in deeds, the rule is said to be as follows:

'As employed in building restrictions, the words 'dwelling house' are, in the absence of anything to the contrary, to be construed in their ordinary sense as a house occupied as a residence, in distinction from a store, office, or other building. The term defines the use to which a building shall be put and not merely the form or character of the structure, and a provision restricting the erection of buildings other than dwelling houses or residences applies not only to the erection of the building in the first place, but likewise forbids the use of a building erected as a dwelling house or residence for other than residential purposes.'

The same authority also states that:

'Where the use of a building is restricted to a 'private dwelling,' the owner will not be allowed gradually to change the character of a building from a residence to a place of business.'

Where the restriction, as in the case at bar, restricts the use to a 'single family dwelling', the nature and extent of the use of his premises for purposes other than as a residence for the members of his family and his domestic servants will determine whether an injunction decree is to be entered against a particular defendant. If he operates a rooming or boarding house on the premises as a business, or is using his dwelling house primarily as a source of financial gain rather than as a residence for himself and his family and domestic servants, that activity should be enjoined. The facts in this case show conclusively that appellant was using the residence primarily as a business in violation of the restriction and therefore there was no error in the Trial Court refusing to instruct a verdict in his behalf. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 520; Walker v. Dorris, Tex.Civ.App., 206 S.W.2d 620; Arrington v. Cleveland, Tex.Civ.App., 242 S.W.2d 400 (Er.Ref.); 14 Am.Jur. Sec. 246...