Wald v. West MacGregor Protective Ass'n, 13486

• Decision Date: 28 January 1960
• Docket Number: No. 13486,13486
• Citation: 332 S.W.2d 338
• Parties: K. M. WALD et al., Appellants, v. WEST MacGREGOR PROTECTIVE ASSOCIATION et al., Appellees.
• Court: Texas Court of Appeals

Page 338

332 S.W.2d 338

K. M. WALD et al., Appellants, v. WEST MacGREGOR PROTECTIVE ASSOCIATION et al., Appellees.

No. 13486.

Court of Civil Appeals of Texas, Houston.

Jan. 28, 1960.

Rehearing Denied Feb. 18, 1960.

Lewis, Ezell, Adams & Thrower, Dyche, Wheat & Thornton, E. H. Thornton, Jr., Thomas F. White and W. E. Dyche, Jr., Houston, for appellant.

McGregor, Sewell & Junell, Ben G. Sewell, Houston, for appellee.

WERLEIN, Justice.

This suit was brought by the West MacGregor Protective Association and certain property owners, individually and as representatives of and in behalf of themselves and other property owners as a class, against appellants to enjoin them from using, occupying or maintaining certain property belonging to appellant Wald, including the house at 4324 Calhoun Road in the City of Houston, for any other than residential purposes, and in particular from using, operating or maintaining a fraternity house, rooming house or boarding house thereon. The case was tried before the court without a jury. Judgment was rendered for appellees permanently enjoining appellants from using, operating or maintaining the property in question as a fraternity house, rooming house or boarding house for such period or periods of time during which that certain agreement dated July 12, 1938, or any renewal or extension thereof, is in force and effect. No findings of fact or conclusions of law were requested or filed.

By their first three Points appellants complain that the court erred in failing to hold that West MacGregor Protective Association had no justiciable interest in the controversy and was neither a necessary or proper party, and erred in admitting evidence of the purpose, membership and functions of such Association and of its constitution and by-laws.

The purpose of the Association as recited in its constitution is 'to serve the mutual interests of the members of the Association in protection of the values of their property, and to maintain and renew such restrictions as serve that purpose.'

It is concerned with other adjoining or nearby restricted areas in addition to the 'restricted area' in question. The Association owns no property in the 'restricted area.' The individual appellees in this case are members of the Association and do own property in such 'restricted area.' The great majority of its members, however, do not own property in the area involved in this suit, and hence would have no right as individuals or as members of the Association to join as plaintiffs herein. Russell Realty Co. v. Hall, Tex.Civ.App., 233 S.W. 996, writ dism.; Moody v. City of University Park, Tex.Civ.App., Dallas 1955, 278 S.W.2d 912.

We have concluded that the Association does not have any justiciable interest in this suit or any enforceable substantive right, and that it is not a necessary or proper party. It was improperly joined and should be eliminated as a party plaintiff. Alexander v, Alexander, Tex.Civ.App., 265 S.W. 1072, error dism.; Eppenauer v. Schrup, Tex.Civ.App., Ft. Worth 1938, 121 S.W.2d 473. We are of the opinion, however, that its joinder as a party plaintiff with the other plaintiffs who are property owners and members of the Association has not resulted in any harm to appellants. It is our view also that the admission of evidence as to the purpose and functions of the Association and the introduction of its charter and by-laws were not error which was calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

By Point 4 appellants complain that the court erred in holding that the use and occupancy of the Wald property by the fraternity house was a violation of the restrictions set forth in the restriction agreement of July 12, 1938.

The agreement in question was executed by the then owners of the lots in the 'restricted area' including the owner of the lot now owned by appellant Wald. It includes, among other restrictive covenants, Article II upon which appellees' suit is based, reading:

'It is understood and agreed that no business house, sanitarium, hospital, saloon, place of amusement, or entertainment, livery stable, factory warehouse, duplex, apartment house, rooming house, boarding house or place of business of any kind shall be constructed, built, kept or maintained on any part of the property covered by this agreement, nor shall any house thereon be used for any such purposes, but shall be used for residence purposes only. The mention of rooming house or boarding house herein does not prohibit the renting out of one room, but is intended only to prevent the running of a regular rooming or boarding house.'

Appellees pleaded that in violation of such restrictions appellants had entered into a lease of the easterly one-half, more or less, of the Wald property for the purpose of using the premises at 4324 Calhoun Road for a fraternity house, rooming house and boarding house, and such lease and the acts performed thereunder are in direct violation of said restrictions.

The evidence shows that the portion of the Wald property occupied by the fraternity was approximately the east 250 feet thereof, including the 8 room, 2-story house and garage thereon, the house facing Calhoun Road. The fraternity, a local chapter of a national Greek letter society, leased the property unfurnished from Wald in 1958. It has the exclusive control and use of the premises under the lease and pays rental if $320 per month. A painted sign on the house identifies it as the chapter home for the fraternity. On the average, 10 or 12 members live in the house. While meals are not served on the premises, food and beverages are available in the house through vending machines. Cokes, Cigarettes, sandwiches are sold on the premises for profit. The home is also used for fraternity meetings, initiations and entertainment. Girls are invited to dance to record player music. There are about three or four radios and two television sets in the house. The nearest neighbor, appellee Troulinas, has frequently been disturbed by the noise from the fraternity house, and on one occasion the police were called to stop the noise and disturbance.

We are of the opinion that the use of the premises in question for a fraternity house is in violation of the foregoing restrictions. We have not found, nor been cited to, any Texas case directly in point, but in certain other jurisdictions it has been held that the use of property for a fraternity is in violation of restrictions against using the property for other than residential purposes. Mu Chapter Building Fund v. Henry, 1949, 204 Ga. 846, 51 S.E.2d 841, 7 A.L.R.2d 431; Hannan v. Harper, 1926, 189 Wis. 588, 208 N.W. 255, 45 A.L.R. 1119; Seeley v. Phi Sigma Delta House Corp., 1928, 245 Mich. 252, 222 N.W. 180; City of Lincoln v. Logan-Jones, 1931, 120 Neb. 827, 235 N.W. 583.

In an annotation on this question in 7 A.L.R.2d 436, the annotator, after reviewing available authorities, concluded:

'The very few cases decided regarding the subject of annotation, that is, whether the use of real estate by college fraternities or sororities constitutes the violation of restrictive covenants, have reached uniform affirmative results, whether by breach of covenant of quiet enjoyment, or by inability to comply with provisions restricting use to one single private dwelling house, or for residence purposes only.'

Appellants, by Points 5 and 6, assert that the court erred in failing to hold that the restriction agreement, if valid, applied only to the west 250 feet of the four individually owned tracts fronting on Calhoun and running back 700 feet in depth to Blythewood, and in failing to hold that the agreement was a plan or scheme to impose use and improvement restrictions on property in a neighborhood and was invalid because ambiguous and not clear.

We have read appellants' statement and argument very carefully but cannot agree with their contentions. The so-called four individual lots designated Bowman, Backlund, Graham and Gripon, extend from Blythewood to Calhoun, a distance of 700 feet, and front on both streets. At the time the agreement was entered into, residences facing east on Calhoun had been constructed upon each of said lots, but no residences had been constructed on the west portion of such lots facing Blythewood. Article VII of the restriction agreement sets out additional restrictions on the west 250 feet of said four lots fronting Blythewood, and provides, among other things, that the owners thereof agree to impose upon such west portion of their lots substantially the following restrictions: (a) Any residence constructed thereon shall face west and shall not be constructed nearer than 100 feet from Blythewood; (b) No garage, servant's house or any other such building may be erected upon the premises facing west on said street, unless same are attached to and made a part of the main residence, with the exception of the Gripon tract, and any detached garage shall be at least 200 feet from the street line; and (c) Only one residence amy be erected upon the west 250 feet of each lot except the Gripon lot.

Then follow certain additional restrictions upon Lots 6 and 10 in Block 66 owned by the MacGregor Drive Development Company, and additional restrictions upon lots of C. M. Malone and Wm. Malone facing Roseneath Drive. Without discussing at length the additional restrictions, we think it suffices to say that the parties nowhere undertake to modify or change the restrictions in the earlier paragraphs of the restriction agreement. The restrictions set out in Article VII are clearly additional restrictions and they are so labeled in the agreement.

Appellants, in undertaking to establish that the parties to the restriction agreement intended that it should apply only to the west 250 feet of the lots facing Calhoun, have resorted to supposition and conjecture rather than to the plain language of the...