Protestant Episcopal Church Council of Diocese of Tex. v. McKinney

• Decision Date: 09 September 1960
• Docket Number: No. 3547,3547
• Parties: PROTESTANT EPISCOPAL CHURCH COUNCIL OF the DIOCESE OF TEXAS, Appellant, v. David H. McKINNEY et al., appellees.
• Court: Texas Court of Appeals

Page 400

339 S.W.2d 400

PROTESTANT EPISCOPAL CHURCH COUNCIL OF the DIOCESE OF TEXAS, Appellant, v. David H. McKINNEY et al., appellees.

No. 3547.

Court of Civil Appeals of Texas, Eastland.

Sept. 9, 1960.

Rehearing Denied Oct. 21, 1960.

Fountain, Cox, Gaines & Fox, S. S. McClendon, Jr., Houston, for appellant.

Young, Young & Daggett, Houston, for appellees.

COLLINGS, Justice.

David H. McKinney and others, as a class representing approximately 200 homeowners in the University Oaks Addition to the City of Houston, obtained an injunction against the Protestant Episcopal Church Council of the Diocese of Texas permanently enjoining the defendant from using lots 1, 2 and 3, Block 1, of University Oaks Addition for other than residential purposes only, and particularly from using said property as a student center, or for student recreation, coffee clubs, chapel services, receptions and meetings, or gatherings of students, or for any other purpose of a like nature, and from using said premises for any purpose whatever except for residential purposes. The defendant has appealed.

The restriction in question provides as follows:

'(a) No business house, sanitarium, hospital, saloon, place of public amusement or entertainment, livery stable, factory, warehouse, duplex, apartment house, rooming house, boarding house, or place of business of any kind (either similar or dissimilar to the sorts hereinabove enumerated) shall be constructed, built, kept or maintained, on any lot or lots in said addition, nor shall any building, or any lot or lots in said addition be used for any such purpose, but shall be used for residence purposes only; provided that the prohibition herein contained of the operation of a rooming house or boarding house shall not prohibit the renting of one room, but is intended only to prevent the running of a regular rooming or boarding house; and provided further that duplex apartments, designed to accommodate not more than two families may be constructed upon, but only upon, Lots No. 20 to 27, Block No. 9, of said addition.'

The court filed findings of fact, a portion of which findings were as follows and constitute the principal material facts in the case:

'Defendant purchased Lots 1, 2 and 3 in Block 1 in the Subdivision in question October 11, 1952. These lots front North on Wheeler Street in the City of Houston. Immediately across Wheeler Street is the University of Houston campus.

'In the year 1939 the University of Houston was small, Wheeler Street not heavily traveled. The University is now very large. Since 1939 there has been constructed, across Wheeler from the Subdivision, three large dormitories, two parking lots, a tennis court and a baseball field. Just West of the Subdivision is another University parking lot. Many students frequent the neighborhood. Traffic is now heavy on Wheeler Street. The streets of the Subdivision are for some distance off Wheeler extensively used by students and others for parking.

'Prior to purchasing the lots in question, search was made by defendant for suitable places for its operations in issue, but none outside the restricted area in question was, or has since been, found which, in the judgment of the Church's Bishop and other officers, provides a suitable location that is near to the University, for the effective prosecution of its objectives.

'The purpose of maintaining the house in question is to give the Episcopalian students attending the University from out of town a homelike and Christian atmosphere into which they may come, such as is hoped is offered in their own homes, in which their religious contacts may be continued.

'The usages of the house permitted or fostered and proposed to be continued by defendant are:

First, residence therein by either a Priest or Postulant for Holy Orders.

Second, on Thursday morning, services of Holy Communion, with duration of some thirty minutes. A Priest is the celebrant; attendance is small.

Third, on Tuesday evenings, Episcopalian students and friends are invited and permitted to assemble for a period of discussion. Coffee and cold drinks are served. A Priest is present. Attendance is small.

Fourth, on Sunday evenings, the Canterbury Club meets for religious instruction and discussion. A Priest is present. Refreshments are served. The Canterbury Club consists of a very few members. Attendance at the meetings is small.

Fifth, the House is open from 9:00 A.M. to 3:00 P.M. each school day. Students are permitted to visit, play games, listen to music, study or hold discussions. Some responsible adult is always present. Again, attendance is small.

'Issuance of the injunction herein will seriously impair the effectiveness of the efforts of the defendant to achieve its aims.

'The activities carried on in the house in question are not offensive to others.

'The defendant's operations on the premises in question have not lessened, and their continuance will not lessen, the value, desirability or usefulness of other properties in the Subdivision as residences.'

The court also made and filed the following conclusions of law:

'1. The above restrictive covenant requiring that any lot or lots in the Addition known as University Oaks, in the City of Houston, Harris County, Texas, shall be used for residence purposes only is a valid and binding and enforceable restriction.

'2. The Protestant Episcopal Church Council of the Diocese of Texas, in its ownership of lots 1, 2 and 3, in Block 1, of University Oaks Addition to the City of Houston, Harris County, Texas, is bound by the restrictive covenant likewise with all property owners owning property in said addition, Plaintiffs in this cause of action.

'3. The nature and extent of the use of said premises by the Defendant Corporation for purposes other than as a residence use only is determinative of whether an injunction decree should be entered and the evidence in this cause is clear that the Defendant Corporation through its use of said real property is violating and has violated the restrictive covenant by a use of said property in a manner other than residence use only.

'4. The Defendant, Protestant Episcopal Church Council of the Diocese of Texas, its officers, agents, servants employees and members, stand equally before the law with all of the many property owners, Plaintiffs herein, residents of University Oaks Subdivision, who here ask to enforce the restrictive covenant prohibiting the use of said property for any purpose other than residence use, and the Defendant Corporation, its agents, servants, employees and members should be enjoined.

'5. Changed conditions outside of the restricted area of University Oaks Subdivision is not a defense available to prevent the enforcement of valid restrictions covering property lying wholly within University Oaks, Subdivision.

'6. A covenant restricting the use of land may be enforced by injunction without regard to the damage caused by the breach.'

The language of the restrictive covenant is not ambiguous. It prohibits the use of the property for...