Gillingham v. Timmins, 10213.

• Decision Date: 11 February 1937
• Docket Number: No. 10213.,10213.
• Parties: GILLINGHAM et al. v. TIMMINS et al.
• Court: Texas Court of Appeals

Page 115

104 S.W.2d 115

GILLINGHAM et al. v. TIMMINS et al.

No. 10213.

Court of Civil Appeals of Texas. Galveston.

February 11, 1937.

Rehearing Denied April 22, 1937.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by V. G. Gillingham and others against Mrs. Lucile S. Timmins and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

T. H. Cody, of Houston (on original brief only), Lawler, Wood & Childress and R. Wayne Lawler, all of Houston, for appellants.

Stewart & DeLange, Albert J. DeLange, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for appellees.

GRAVES, Justice.

This appeal is from a judgment of the district court of Harris County — entered after a final trial upon the facts, on a jury's verdict in response to special issues, as well as upon the court's own findings on the law and the evidence — refusing the appellants a permanent mandatory injunction against the appellees, whereby the former sought to prevent the latter from building and completing a so-called "garage-house" on a lot in Southampton place addition to the city of Houston alleged to be subject to a building restriction that required any dwelling place upon that lot to cost not less than $6,000, whereas this one would cost not over $1,250.

Appellants — through their able attorney, who is now a member of this tribunal — inveigh against such adverse judgment, in substance, upon these four propositions of law:

(1) The undisputed facts before the court and jury required an instructed verdict in their favor;

(2) Special issues Nos. 5, 6, and 8, were erroneously submitted over appellants' objection thereto on that ground, in that they unduly impressed upon the jury that — in the opinion of the trial court — the appellees' pleaded defense of a waiver of such claimed restrictions on appellants' part was meritorious;

(3) Under the undisputed facts otherwise appearing, the court reversibly erred in submitting special issue No. 9 inquiring whether or not the appellants, after learning that such a "garage-house" was being built on the lot involved, promptly gave the appellees proper notice of the formers' protest against its erection and use;

(4) The court reversibly erred in excluding proffered testimony from the appellants to the effect that when they themselves came to buy their lots in the addition, inducing representations were made to them by the promoters thereof that they were spending more than a million dollars in laying out improvements therein, that every lot was restricted as to the minimum cost of construction that could be placed thereon — and that they were led to buy because of such representations.

The trial court had originally granted appellants a temporary injunction that had remained in effect until the final trial on the merits, which became functus officio along with refusal of the permanent writ, herein so complained of.

In answering, the appellees counter, in material substance, with these opposing contentions:

(1) The uncontroverted testimony shows that appellees — knowing at the time that there were then many such "garage-houses" already existing and being used in the addition — so built the house in controversy on the back portion of their lot for a garage, to be used temporarily as a residence for themselves, they having matured plans for the construction of a principal dwelling on the front portion of the lot, then intending to use this structure as a garage and servants quarters.

(2) That there neither was when they so temporarily built their herein challenged structure, nor is there now, any binding restriction upon themselves and Southampton addition against their so building and living in a "garage-house" upon such property for such a use; that upon the face thereof, as well as under the preponderance of the testimony relating to any minimum value building restrictions that may have been established against lots in the addition, it is plain that they were not intended for application to garages so built and used for dwelling purposes, whether or not a principal dwelling house were erected upon the same lot at the same time.

(3) The original promoters of the Southampton addition — E. H. Fleming and the San Jacinto Trust Company — themselves construed the minimum cost provisions relied upon by appellants in the trust agreement and other documents, under which the property had been placed upon the market and sold, as not applying nor intended to apply to such garages used for dwelling purposes, which interpretation of the claimed restrictions appellants bought subject to and by which they were bound.

(4) The evidence conclusively supports the jury's verdict under special issues Nos. 5, 6, and 7 to the effect that not only has there been a general acquiescence by appellants, the promoters of the addition, and all others concerned, in such construction and use of "garage-houses" in the addition as places of residence prior to the erection of principal dwellings upon the various lots, but further, there had been a general abandonment therein of any prohibition or restriction against the use of such advance "garage-house" for residence purposes, and that appellants have waived the enforcement now of any such claimed prohibition against the appellees.

(5) The claimed restrictions having been, as applicable to such "garage-houses" for temporary purposes, so generally violated, abandoned and waived, the appellants, after further learning that such a residence garage was to be and was being built by these appellees, gave them no prompt or proper notice of any protest upon their part against its operation until the appellees had completed their building, all except the painting and finishing of the roof thereon, wherefore the trial court was correct in refusing the prayed-for restraint at appellants' instance.

There are further answering presentments — not deemed needful of detailed statement—to the effect that appellees were not bound by the representations appellants declared upon as having been made to themselves, and that the court had erroneously excluded certain testimony the appellees offered in their own behalf tending to show express consent of the promoters of the addition for the erection and use of back-end garages for residence purposes like that the appellees had built.

The facts assumed by appellants to have so appeared from the undisputed evidence as to have left no alternative than a peremptory instruction in their favor on the whole case are substantially thus detailed in their first proposition:

That the 160-acre Southampton tract had been subdivided into 646 lots, subjected to a general plan, and all of them sold expressly subject thereto except 35 that remained unsold at the time of this injunction trial, whereby a minimum cost of construction was imposed upon each lot; that only seven lots exist in the addition on which there are "garage-houses" in violation of the minimum cost of construction restriction, that the nearest one of these to the appellees' lot fronts on a street two streets removed therefrom, that the other six thereof are located in blocks completely across the addition from it, save one — which fronts on another street from the appellee's lot, being three blocks away; that six of these seven violations occurred before most of the lot owners now living there moved into Southampton place; that the lot owners therein have organized themselves for the purpose of seeing that the improvements placed on the lots do not fall below the minimum applicable thereto; that the appellees were donees of their lot in question, which had been purchased by their donor expressly subject to the "restrictions" at the time when six of the seven stated violations had already occurred; and finally that all the lots in the addition are now two-thirds built up.

Deductions are then added to the effect that it follows from the things enumerated, as a matter of law, that the plan of the addition had not been abandoned, that the violated restriction was of value to the owners of lots therein, and that the trial court should have held accordingly.

In contrast to the controlling reaches of the cause, as thus promulgated by the appellants in substantially the same way upon both the trial below and this appeal, the learned trial court conceived it to be rather determinable upon questions of fact, which it submitted to and which were answered by the jury, with this resulting effect:

That the promoters of the addition originated a general plan or scheme for putting the property on sale to the public under the restrictions contained in a "Trust-Agreement" between them, dated October 15, 1922, which general plan intended to impose restrictions against the use for residence purposes of "garage-houses" on the portion of the lots where garages were permitted, but was not intended to inhibit the use of such "garage-houses" as places of residence before the erection of the principal dwelling place upon the lot; that this inhibition against "garage-houses" was for the benefit of all lot owners in the entire addition; that the appellees at the conclusion of the erection of the "garage-house" they built on their lot 10 in block 45 of the addition, which is the one here involved, had the bona fide intention of beginning some time in the future of the building of a principal dwelling on such premises at a cost of not less than $6,000 — the amount called for in the restriction schedule referred to; that prior to the filing of this suit there had been a general acquiescence in the erection and use of "garage-houses" in the addition as places of residence prior to the erection of principal dwellings upon the lots, and that the appellants herein had at such time waived the enforcement of any such restrictions or inhibitions; that appellants would not suffer any substantial damage from the occupation by the appellees of their "garage-house" in controversy herein,...