Rudy v. Southampton Civic Club, 3160

• Decision Date: 23 September 1954
• Docket Number: No. 3160,3160
• Citation: 271 S.W.2d 431
• Parties: Manuel RUDY et ux., Appellants, v. SOUTHAMPTON CIVIC CLUB et al, Appellees.
• Court: Texas Court of Appeals

Page 431

271 S.W.2d 431

Manuel RUDY et ux., Appellants, v. SOUTHAMPTON CIVIC CLUB et al, Appellees.

No. 3160.

Court of Civil Appeals of Texas, Waco.

Sept. 23, 1954.

Rehearing Denied Oct. 14, 1954.

De Lange, Hudspeth & Pitman, Houston, for appellants.

Fulbright, Crooker, Freeman, Bates & Jaworski, Chas. W. Bell, John V. Singleton, Jr., Houston, for appellees.

HALE, Justice.

Appellants, Manuel Rudy and wife, own a house and lot which they occupy as their homested in Southampton Place Addition to the City of Houston. Each of the twenty-two appellees is also a home owner in the Addition. Prior to the institution of this suit appellants had erected on the rear part of their lot a garage apartment as a separate structure from their dwelling house and had rented the same to persons other than members of their family. Appellees brought this action to ejoin appellants from using or permitting the use of their lot for any purpose other than a single family dwelling, and particularly from using or permitting to be used the structure erected on the rear of their lot for the purpose of housing any person other than members of appellants' family, it being the contention of appellees that such use was prohibited by the following restriction which was applicable to all lots in the Addition, viz.: 'No apartment house or duplex will be permitted in the Addition; the object of this provision being to prohibit multiple housing throughout the entire Addition.'

Appellants answered the suit with numerous special exceptions, a general denial, by pleas of waiver, relinquishment and forfeiture of the restrictions relied upon by appellees, pleading also a charge of conditions and an abandonment by appellees of the restrictions which they had pleaded.

The case was tried before a jury. Upon the conclusion of the evidence each of the parties duly presented to the trial court their respective motions for a peremptory instruction, but each motion was overruled. Thereupon, the court submitted to the jury three special issues relating to appellants' pleaded defense, inquiring of the jurors as to whether they found from a perponderance of the evidence (1) 'that at the time the defendants, Manuel Rudy and wife, Mrs. Manuel Rudy, first rented the garage apartment on the rear of their lot, the occupancy of rooms and apartments by persons other than by members of the family, as that term has been hereinbefore defined for you, of other owners of lots in Southampton Place Addition had become so prevalent as to constitute an abandonment of the restrictions by the property owners in said Addition'; (2) 'that prior to the filing of this suit the character of Southampton Place Addition had changed from one in which rooms and apartments wee not generally occupied by persons other than the members of the family, as that term has been hereinbefore defined for you, of the owners of lots in said Southampton Place Addition to one in which rooms and apartments were generally occupied by persons other than members of such families'; and (3) 'that prior to the institution of this suit the plaintiffs and each of them had generally waived, as that term is hereinafter defined for you, the enforcement of the restrictions against the occupancy of rooms and apartments by persons other than members of the family, as that term has been hereinbefore defined for you, of the owners of lots in said Addition.' The jury returned a negative answer to each of the special issues so submitted. The court then rendered judgment in favor of the appellees, granting them the injunctive relief which they sought against appellants, and hence this appeal.

Under the points upon which the appeal is predicated, appellants say in effect that the trial court erred to their prejudice by submitting their defense of abandonment, change of conditions, and waiver in the manner and form in which they were submitted and in certain rulings with respect to the admissibility of evidence relating to such issues. On the other hand, appellees say the court did not err in any of the particulars of which complaint is made and that such error or errors, if any, are immaterial on this appeal because, under the undisputed evidence and stipulations, they were and are entitled as a matter of law to the relief sought and obtained by them in the court below.

The restrictions here relied upon by appellees were before the Galveston Court of Civil Appeals in the case of Pardo v. Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141 (er. ref.), 145. In that case the Court set forth in its opinion an extended re sume of the manner in which Southampton Place Addition was originally subdivided and placed on the market and the 'Basic Restrictions' which were applicable to all lots in the Addition. The Court expressly held that the use of the lot there involved 'must be limited to a single family residence' and we think the holding in that case is of controlling effect in its application to the voluminous evidence in the casue now before us.

Appellees established the existence of all the material facts alleged in their trial petition by stipulations and competent evidence that was without any dispute or contradiction. As we understand appellants' brief, they do not contend otherwise, their complaints on the appeal relating only to the manner and form in which the trial court submitted to the jury the defensive issues affirmatively pleaded by them and to the claimed errors of the court in ruling on the admissibility of evidence relevant to such issues. Hence, we must determine whether the evidence as a whole...