Mitchell v. Gaulding, 5153

• Citation: 483 S.W.2d 41,75 A.L.R.3d 1090
• Decision Date: 13 July 1972
• Docket Number: No. 5153,5153
• Parties: Robert H. MITCHELL et ux., Appellants, v. Cecil E. GAULDING, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 41

483 S.W.2d 41

75 A.L.R.3d 1090

Robert H. MITCHELL et ux., Appellants, v. Cecil E. GAULDING, Jr., et al., Appellees.

No. 5153.

Court of Civil Appeals of Texas,

Waco.

July 13, 1972.

Rehearing Denied July 27, 1972.

Saner, Jack, Sallinger & Nichols, Dallas, for appellants.

Strasburger, Price, Kelton, Martin & Unis, John H. Hall, Robert L. Hoffman, Dallas, for appellees.

HALL, Justice.

The defendant-appellant, Robert H. Mitchell, whose wife was formally joined as a defendant, constructed a radio tower 125 feet in height on the lot where their home is located. Whether or not the tower is a prohibited 'structure' within the meaning of deed restrictions which, without dispute, apply to the lot is the single question we must decide.

The trial court concluded that the tower violated the deed restrictions. It granted the plaintiffs-appellees' motion for summary judgment for mandatory injunction requiring the removal of the tower, and overruled the defendants' motion for summary judgment. We affirm.

In February, 1950, the then owners of all ten lots in the Walnut Park Addition to the City of Dallas, Texas, adopted and filed in the deed records of Dallas County a covenant of use restrictions for those lots, agreeing therein that the restrictions should 'run with the land.'

The plaintiffs, at least five of whom resided in the subdivision at the time of Mitchell's purchase and at the time of suit, originally brought this action ot have the tower removed on the grounds that it is a nuisance, and that it is a prohibited structure within the meaning of section two of the restrictions. In an amended pleading, the plaintiffs abandoned their theory of nuisance.

Section two of the restrictions provides in part as follows:

'No structure shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling and a private garage for not more than three cars, and outbuildings necessary for typical single-family use.'

The parties agree that the disposition of their dispute turns upon the meaning to be given to the word 'structure' as that term is used in the second section of the restrictions. Mitchell contends that the word was intended only to refer to and include buildings. The plaintiffs insist that it was used in a broader sense and includes the radio tower.

It is the general rule that in construing covenants which restrict the use of land, all doubt should be resolved in favor of the free use of property and against restrictions. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516, 518 (1959). It is the equally settled rule that the construction of such covenants requires that the instrument as a whole and the circumstances and conditions surrounding the property should be considered, so that the manifest object of the restriction should be fairly and justly determined. Fischer v. Reissig (Tex.Civ.App., 1940, writ ref.) 143 S.W.2d 130, 131.

The restrictions are not ambiguous, and there is no dispute in the facts.

Section one of the restrictions requires that all lots in the subdivision 'shall be residential lots.' Other provisions in the covenant regulate, among other things, the number of stories and floor area of the residences and their masonry content, front and interior yard space, the construction and location of buildings and fences and walls on some lots to require 'conformity and harmony of external design with existing structures * * * and with respect to topography and finished ground elevation,' the keeping of animals or fowls, and the disposal of rubbish; and prohibit the use of any temporary structure for residential purposes.

The ten lots are each 170 feet wide, and range in depth from 195 feet to 260 feet. The lots, and the area surrounding them, are devoted exclusively to substantial single-family residences. Mitchell and his wife purchased their residence in the subdivision in August 1970, paying $49,500 therefor. He completed erection of the tower in October, 1970, at a cost of $460. The tower has a present value of $390. It has an antenna consisting of several rods that extend horizontally from its top. It is supported by three groupings of support wires which attach to it at varying heights. According to a picture in evidence, the distance between the points of anchor of the support wires on the ground spans the length of Mitchell's house.

In Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944), the court was concerned with whether a picket fence constructed on and along a utility easement violated a subdivision restriction which prohibited a 'structure of any kind' on the easement premises. Concluding, under the circumstances, that the fence was a prohibited structure, the court said:

'The word 'structure' is often used in a broad sense, often in a restricted sense. The broad definition is that quoted in Favro v. State, 39 Tex.Cr.R. 452, 46 S.W. 932, 73 Am.St.Rep. 950: 'Any production or piece of work artificially built up, or composed of parts joined together in some definite manner; any construction.'...