Town of Highland Park v. Marshall, 14253

• Decision Date: 17 November 1950
• Docket Number: No. 14253,14253
• Citation: 235 S.W.2d 658
• Parties: TOWN OF HIGHLAND PARK v. MARSHALL et ux.
• Court: Texas Court of Appeals

Page 658

235 S.W.2d 658

TOWN OF HIGHLAND PARK v. MARSHALL et ux.

No. 14253.

Court of Civil Appeals of Texas, Dallas.

Nov. 17, 1950.

Rehearing Denied Dec. 22, 1950.

J. C. Muse, Jr., Dallas, for appellant.

Alexander, George, Thuss, Johnson & Passman, and King S. Williamson, Dallas, for appellees.

YOUNG, Justice.

The action below was one to enforce zoning, brought by appellant municipality against Marshall and wife; being in nature of a petition for perpetual injunction, restraining defendants from renting and using as a second single family residence the accessory building on rear of their home premises at 3600 Harvard Street, located in a single family dwelling district. A violation of plaintiff's comprehensive zoning ordinance was charged, with prayer for issuance of temporary injunction pending trial to the merits. Defendants pled a nonconforming use, assertedly acquired prior to enactment of the Town Zoning Laws. By agreement, preliminary hearing was waived, the parties proceeding to final trial with the result of denial of all injunctive relief, petitioner duly prosecuting an appeal.

History of the subject matter in suit reaches back to 1924. Under the testimony of plaintiff's witness, Mrs. Rebecca McCanless, about that time the property, a corner lot at Harvard and Byron, was acquired by herself and former husband, H. F. McFarland. The family then consisted of two small children,-a boy and girl; also Mr. McFarland's mother, Mrs. Eleanor McFarland, a widow, who was considered a part of the family group. On the lot at time of purchase was a one-story six-room bungalow fronting on Harvard, with an accessory house on the rear adjacent to alley, facing Byron, and consisting of a one-story garage house, bedroom, living room, bath, and kitchen. The family car was always kept in this garage; Mrs. McCanless further stating that, although divorced from McFarland in 1935, she continued to live at 3600 Harvard until 1943; that in 1930 or '31 two bedrooms, bath, and storage room were built on rear of the main residence by a second-story addition; at the same time, having a need for more space in nature of bedroom, playground for children, etc., another story was added to the accessory house; that during all the years, her mother-in-law, the elder Mrs. McFarland, had lived and kept house in the accessory building, providing her own groceries, preparing own meals 'whenever she wanted to'; paying all utility bills except water service, having her own income and being financially independent; however, that she was in and out of the main house as a member of the family, either for meals or assisting in care of the children during sickness or absence of parents; that the boy stayed with his grandmother a great deal, occupying the upstairs quarters; both children growing up and leaving home around 1939-40; that thereafter she continued to live in the main house, with the elder Mrs. McFarland in accessory house, until it was sold in 1943, the latter at no time paying any rent. Mrs. McCanless made contradictory statements as to having ever rented the accessory building, first testifying on cross-examination to a rental of upstairs room to two girls in 1935 or '36; then on redirect, that the back premises had never been occupied by any one except her mother-in-law with use by children as above described.

Lindsley Marshall, appellee, testified in substance that he bought the Harvard Street property in October 1948, paying $17,000,-since adding $1,000 in improvements; that at time of purchase the garage building was furnished and occupied by Miss Mary K. Wise and three other girls on a rental basis, such arrangement existing on date of suit; that the rental included the garage space, though he used it jointly with tenants for storage purposes, parking his own cars on street; the accessory house having separate meters for utilities-except water; and that the garage house was in substantially the same condition as when he bought it. He had become familiar with both properties during the 20's, observing then that Mrs. McFarland lived in the garage building, carrying groceries into the place. In March 1949 he received a letter from one of plaintiff's officials advising that use of the rear house for rental purposes was in violation of ordinance. The upstairs quarters were 18 1/2 by 30 feet in size.

Miss Mary Wise, Air Hostess, Braniff Air Lines, stated that she had been renting the building on rear of the Marshall lot, known as 5013 Byron, since April 1948, sharing the space with three others,-two upstairs and two down, cooking meals and keeping house there; that there was a porch, concrete step and slab, giving access to Byron Street, with similar construction on side facing the main house on Harvard.

In July 1930, H. F. McFarland sought and obtained from appellant's building inspector a permit for alteration of his residence at 3600 Harvard, no like application appearing to have been made for the described addition to garage building.

Appellant's ordinance of comprehensive zoning dates from July 1929; and section 2 defines certain words used generally therein, from which is quoted: '* * * (2) Accessory Building: A subordinate building, the use of which is manifestly incidental to the permitted use actually made of the main building or to the permitted use actually made of the premises. * * * (12) Dwelling, Single Family: A detached building having accommodations for and used and occupied exclusively by only one family, and neither used nor adaptable to use for any other purpose. * * * (14) Family: One or more individuals living together as a single house-keeping unit, as distinguished from a group occupying a boarding house, lodging house, fraternity house, or hotel. * * * (26) Nonconforming Uses: Any building or land lawfully occupied by a use at the time of passage of this ordinance or amendments thereto which does not conform, after the passage of this ordinance or amendments thereto, with the use regulations of the district in which it is situated. (27) Occupancy: Occupancy, as used in this ordinance, pertains to, and is, the purpose for which a building is used or intended to be used. Change of occupancy is not intended to include change of tenants or proprietors. * * *.' Section 3 relates to a single family dwelling district, providing in part: 'A. Use Regulations: In a Single Family Dwelling District a building, premises or lot shall be used for the following, but only for the following purposes, and every building erected or structurally altered shall be designed and arranged to be used, and thereby made adaptable to use, for only the following purposes: (1) Single family dwelling; (then follow a number of purposes not material); * * *; and, (8) Such accessory or subordinate uses as naturally appertain thereto and customarily follow as a mere incident to the use and enjoyment of premises and buildings for any of the above uses permitted by this Section and actually made of the premises, * * * B. Accessory Buildings: The following, but only the following, shall be permitted as accessory buildings: (Paragraphs 1 and 2 relate to restrictions not material) * * * (3) Nothing herein shall authorize or be construed to permit the occupancy or use of any accessory building as a place of abode or dwelling by anyone other than a bona fide servant actually then regularly employed by the occupant of the main structure on such premises. The equipment of an accessory building or servants quarters with sink, cook stove, or any other facilities for the independent occupancy thereof, shall be prima facie evidence that such building or servants quarters is not an accessory building but itself a second single family dwelling in violation of this Section. * * * Section 7. Nonconforming Uses: (1) Any use of property existing at the time of the passage of this Ordinance that does not conform to the regulations prescribed in the preceeding sections of this Ordinance, shall be deemed a nonconforming use. (2) A nonconforming use may be continued subject to such regulations as to the maintenance of the premises and conditions of operation as may in the jugment of the Board of Adjustment be reasonably required for the protection of...