Fischer v. Reissig
| Decision Date | 17 July 1940 |
| Docket Number | No. 8956.,8956. |
| Citation | 143 S.W.2d 130 |
| Parties | FISCHER et al. v. REISSIG et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Roy C. Archer, Judge.
Action by H. H. Reissig and others against Erwin Fischer and others to enjoin construction of two houses alleged to violate building restriction in deed. From an adverse judgment, defendants appeal.
Affirmed.
Wm. Trenckmann and Coleman Gay, both of Austin, for appellants.
Harris & Harris, of Austin, for appellees.
The parties will be designated as in the trial court. Plaintiffs, H. H. Reissig and others, property owners in Oakmont Heights in the City of Austin, sued defendants, Erwin Fischer and others, owners of Lot. No. 1, Block No. 3, in the said addition, and who at the time had begun the construction of two residences thereon. The plaintiffs brought suit to enjoin the construction of the houses, contending that the said houses did not comply with the restriction in the deed:
On the hearing of the temporary injunction, the court ordered, "that defendants be permitted to proceed with the construction of such buildings to their completion, and to file their written report with the court, showing the completion of same, their locations, cost of construction, etc., at the risk, however, of defendants, and upon the filing of said report the court will hear further evidence and finally determine whether or not the said buildings comply with the terms of the restriction." Pursuant to this order, the houses were completed; and after final report and hearing the court entered its judgment finding that the house facing West 36th Street was constructed in compliance with the building restrictions in the deed; but that the house facing Oakmont Heights Boulevard was constructed for use as a dwelling and that it did not face the street upon which the lot fronts, in violation of the restriction regulating the frontage of buildings. Therefore, the court granted a mandatory injunction and ordered the removal of the house facing Oakmont Heights Boulevard; hence this appeal.
Appellants contend that, "since the restrictions upon Lot No. 1, Block No. 3, in Oakmont Heights, did not expressly prohibit the erection of more than one dwelling house upon said lot, such restrictions would not be enlarged by implication to prohibit the erection of more than one house thereon, such restrictions being strictly construed against the grantor."
It is true that there is no express prohibition of the erection of more than one dwelling house upon the lot, and we recognize the general rule that covenants and agreements restricting the free use of property must be strictly construed, favoring the grantee and against the grantor, and all doubts should be resolved in favor of the free and unrestricted use of the premises. Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014, 1015; Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318; Ragland v. Overton, Tex. Civ.App., 44 S.W.2d 768; 14 Am.Jur., 621, § 212; 18 C.J. 386, § 450. We think, however, in applying this rule of strict construction to the restriction quoted, that it was clearly intended to provide, (1) that only one dwelling house should be erected on each lot in the addition; and (2) that the house should face West 36th Street. That is, in applying the general rule of strict construction to the restriction, "The dwelling house, as distinguished from outhouses and servant's quarters, shall face the street upon which the lots front, and no part thereof shall be nearer than 25 feet to the front property line," the article "the" preceding "dwelling house" clearly indicates that only one dwelling house shall be built on each lot. The clause, "the dwelling...
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Young v. Gardner, 16162
...ascertain the intent of the parties from the language used in light of the existing circumstances. Fischer v . Reissig, 143 S.W.2d 130 (Tex.Civ.App.--Austin 1940, writ ref.). This covenant requires that all utility, garage or service areas shall be screened. It requires that the screen be a......
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MacDonald v. Painter
...be only one single family dwelling to each numbered and platted lot, but we do not regard them as analogous. In Fischer v. Reissig, 143 S.W.2d 130 (Tex.Civ.App.1940, writ ref.) a deed to a single lot contained this restrictive covenant: 'The dwelling house * * * shall face the street upon w......
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Gadd v. Thompson
...use of the expression "the" dwelling house necessarily implied that no more than one would be built on that lot. Fischer v. Reissig, 143 S.W.2d 130, 131 (Tex.Civ.App.1940). This result comports well with what the special judge did in the present case, since the law does not ordinarily conte......
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Steger & Bizzell, Inc. v. Vandewater Const., Inc.
...'a' is indefinite, but 'the' refers to a certain object." Black's Law Dictionary 1324 (5th ed. 1979); cf. Fischer v. Reissig, 143 S.W.2d 130, 131 (Tex.Civ.App.1940, writ ref'd). First, then, both a solicitation and a transaction necessarily involve the participation of more than one party. ......