Walker v. Dorris

• Decision Date: 21 November 1947
• Docket Number: No. 14885.,14885.
• Citation: 206 S.W.2d 620
• Parties: WALKER v. DORRIS et al.
• Court: Texas Court of Appeals

206 S.W.2d 620

WALKER v. DORRIS et al.

No. 14885.

Court of Civil Appeals of Texas. Fort Worth.

November 21, 1947.

Rehearing Denied December 19, 1947.

Appeal from District Court, Tarrant County; Frank Culver, Jr., Judge.

Suit by Paul D. Dorris and another against J. N. Walker to enjoin defendant from conducting his medical practice in a residential house on defendant's lot. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Martin, Moore & Brewster, of Fort Worth, for appellant.

Wm. Pannill, of Fort Worth, for appellees.

HALL, Justice.

This is another restriction suit applicable to the Hillcrest Addition to the City of Fort Worth, Tarrant County, Texas. The property involved is Lot 2 in Block 13 of said Addition, which is owned by appellant, Dr. J. N. Walker, said lot being adjacent to Lot 3 owned by appellee, H. E. Kutzschbach, and Lot 3 is adjacent to Lots 4 and 5 owned by appellee, Paul D. Dorris. Appellees reside on their respective lots. They brought suit for injunction to restrain the appellant, a medical doctor, from conducting his practice in a resident house located on said Lot 2. Their pleadings and the testimony reflect that the use said doctor was making of the premises was that of a professional business rather than residential.

Besides the defendant's general denial, he plead that the use he was making of the premises was not of a business or commercial nature and therefore was not in violation of the restriction set out in his deed. He also pleaded in the alternative that if he was using the premises in violation of the restriction that appellees had waived their right to complain of such use by permitting more and other serious violations in the same neighborhood over a long period of time. After the trial court had heard the evidence and argument of counsel, it entered judgment permanently enjoining the appellant from practicing his profession in the resident house in question. The appellant perfected this appeal by assigning two errors, as follows:

(1) "The error of the court in instructing the jury to return a verdict for the plaintiffs when the evidence failed to show as a matter of law that the defendant was violating any of the restrictions governing his property and when there was evidence showing that by acquiescing in similar uses of other residences in said Addition over a long period of time, the restrictions, insofar as they applied to a profession like the practice of medicine in a residential building, had been waived and abandoned."

(2) "The error of the court in overruling the defendant's motion for instructed verdict when the evidence showed as a matter of law that he was not violating any of the restrictions governing his property and that by acquiescing in similar uses of other residences in said Addition over a long period of time, the restrictions, insofar as they applied to a profession like the practice of medicine in a residential building, had been waived and abandoned."

The appellant admits that he is not residing in the building in question. He further admits he is using the building solely for professional purposes and that he has made some minor changes inside, converting the bath room into a laboratory.

As we view the points in question, we find the first one covers the proposition as to whether practice of medicine by appellant in the residential building violates the restriction, which is plead and proved by the appellees as a covenant running with the land, a part of which is as follows: "That no building shall be erected on said premises except a dwelling house and outbuildings thereon." The appellant admitted that he had read the restrictions and knew what was in them before he purchased the place.

In deciding the sole question as to whether or not a house built and restricted for residential property shall be in violation of such restriction when it is abandoned for residential purposes and used exclusively as a hospital and/or office building for a physician, we must first review the intent and purpose of the language used in the restriction.

In 26 C.J.S., Deeds, § 164, starting at page 525, we note that: "in the absence of an abandonment, waiver or consent to its violation, a restriction of the use of premises to residential purposes may be enforced according to its terms by one entitled to the benefit thereof. Such a restriction will not be extended by implication to include anything not expressed therein * * * and the word `residence' in such restrictive covenant means a dwelling house where a person lives in settled abode. As employed in building restrictions the words `dwelling house' are, in the absence of anything to the contrary, to be construed in their ordinary sense as a house occupied as a residence, in distinction from a store, office, or other building. The term defines the use to which a building shall be put and not merely the form or character of the structure, and a provision restricting the erection of buildings other than dwelling houses or residences applies not only to the erection of the building in the first place, but likewise forbids the use of a building erected as a dwelling house or residence for other than residential purposes." Continuing on page 527 under the heading, "Partial use for business or professional purposes," we find the following: "Where the use of a building is restricted to a `private dwelling,' the owner will not be allowed gradually to change the character of a building from a residence to a place of business." We note the next sentence in the citation is in favor of the appellant, "a restriction against the erection of any building other than a private dwelling house is not violated by the use of a portion of a residence as a dental office, or by the use of premises in an inconspicuous manner as medical offices by physicians." On page 528, we find the following language under the term, "Hospitals and institutional uses. Restrictions against use otherwise than for residence purposes and dwellings have been held violated by the use of a building for a sanitarium or maternity hospital or a nursing or convalescent home or a hospital and a home for nurses. It has, however, been held that a use of a portion of a dwelling as a private hospital may be permitted, and it has been said that the test as to whether a nursing home violates a restriction of the use of the premises to a single private dwelling house is whether the building still retains its general character as a private dwelling. Permission to receive and care for medical and surgical patients does not permit the erection of a hospital where the erection of buildings other than dwelling houses is precluded."

The appellant cites and principally relies upon the case of Briggs et al. v. Hendricks et al., Tex.Civ.App., 197 S.W.2d 511, 512. We find the Briggs case distinguishes itself from the case at bar because in the Briggs case the facts show that the physician merely occupied a portion of his residence as an office and where he practiced his profession. In the case at bar neither the appellant nor any one lives in the house but he has converted it into a medical office building. Then too, the restriction in the Briggs case partially destroyed the residential portion thereof by inserting paragraph (e) as follows: "No noxious or other offensive trade or activity...