Ragan v. Mosher

• Decision Date: 17 November 1949
• Docket Number: No. 12137,12137
• Citation: Ragan v. Mosher, 225 S.W.2d 438 (Tex. Ct. App. 1949)
• Parties: RAGAN et al. v. MOSHER et ux.
• Court: Texas Civil Court of Appeals

Page 438

225 S.W.2d 438

RAGAN et al. v. MOSHER et ux.

No. 12137.

Court of Civil Appeals of Texas, Galveston.

Nov. 17, 1949.

Rehearing Denied Dec. 15, 1949.

James N. Erwin, Jr., Randolph & Butler and Nowlin Randolph, of Houston, for appellants.

Walter C. Clemons and J. H. Sperry, of Houston, for appellees.

MONTEITH, Chief Justice.

This is an appeal from an order of the district court of Harris County denying an application for an injunction brought by appellants, Cooper K. Ragan and wife and Wood Johnson seeking to restrain appellees, W. E. Mosher and wife, from erecting a garage apartment on property in Ormond Place Addition to the City of Houston adjoining the Ragan property.

Appellants alleged that Cooper K. Ragan and his wife owned and occupied Lot 5 Block 9 of Ormond Place Addition; that appellant Wood Johnson owned and occupied Lot 6 in Block 9 of said Addition. That appellee, William E. Mosher and wife owned and occupied Lot 4 in Block 9 of said Ormond Place Addition. They alleged that they had purchased said property subject to the restrictions that not more than one residence should be erected on the lot purchased, that no building except for residence purposes, garage or servants room necessary to be used in connection with the residence should be erected on said Lot, and that said restrictions were in full force, but that appellees, in direct violation of the restrictions in the deed under which they held title, had erected a two story garage apartment at the rear of their home on said Lot 4 in Block 9 of said Ormond Place Addition.

Appellees in their answer, alleged that appellant Cooper K. Ragan was estopped from asserting the validity of the building restrictions relied upon by them because he had breached the provision of the restrictions in question by using the improvements on their property for a duplex apartment rather than a single residence dwelling and that appellant Wood Johnson was estopped from asserting the validity of the restrictions relied upon by him because he had not objected to the violation of said building restrictions by other owners in the Ormond Addition on Banks Street who had constructed duplex and garage apartments in the block on which their property was located; that the neighborhood in which they lived had changed from the purposes for which the building restrictions were first enacted and that the addition was not longer used by the owners of the property therein for single residence buildings alone.

In a trial of the case upon its merits, a jury, in answer to special issues submitted found in effect, among other facts, that the restrictions contained in the deed under which appellees held said Lot 4 in Block 9, prohibited the erection of living quarters over a garage to be occupied by a tenant but that, prior to the institution of this action, there had been a general acquiescence in the erection and use of living quarters over garages for tenant purposes on lots located in Ormond Place Addition, and that appellees relied upon such acquiescence when they proceeded to build living quarters over their garage for tenant purposes. The jury found that appellants had generally waived the enforcement of restrictions against the building and use of living quarters over garages on lots located in Ormond Place Addition, but in answer to special issue No. 5, they found that the defendants did not rely upon such waiver when they proceeded to build the living quarters over the garage for tenant purposes. They found that before appellees erected the improvements in question there had been an abandonment generally in Ormond Place Addition in restrictions against the erection and use of living quarters over the garage for tenant purposes, and that the appellees relied upon such abandonment when they proceeded to build the living quarters above the garage for tenant purposes. They found that appellants did not suffer any substantial damage by the erection and use of the living quarters over the garage for tenant purposes upon their premises.

Judgment was entered denying all relief sought by appellants.

Appellants rely on seven points of alleged error. They assign error in the refusal of the court to instruct the jury to return an instructed judgment for them for the alleged reason that the evidence was undisputed that appellees had violated the restrictions in Ormond Place Addition which were in full force and effect. Under their points of appeal Nos. 3, 4, 5 and 6, appellants contend that the trial court erred in submitting special issues Nos. 2, 4, 6 and 7, which inquire as to whether there had been a waiver or abandonment of the restrictions against the building and use of living quarters over garages on lots in Ormond Place Addition, for the alleged reason that said issues were not supported by pleading and were contrary to any evidence in the case. They also contend that there is a material conflict of the findings of the jury in response to special issues No. 3 and 5.

The controlling question presented in the appeal is whether the verdict of the jury is supported by the evidence.

It was stipulated by the parties that Ormond Place Addition was placed on the market under a general plan to restrict the addition to the building of private residences, and that all deeds made to purchasers of lots therein including the deed to Lots 4, 5, and 6 in Block 9, contained the following restrictions and covenants:

'Not more than one residence shall be erected on said lot and it shall front in a southerly direction on Banks Avenue.

'No buildings, except for residence purposes, garage, servant room, etc., necessary to be used in connection with the residence shall be erected on said lot, and the...