SOUTHAMPTON CIVIC CLUB et al., Petitioners, v. O. Dean COUCH, Jr., et al., Respondents, 322 S.W.2d 516

HICKMAN, Chief Justice. The sole question involved in this case is the construction and application of a certain restrictive covenant on Southampton Place Addition to the City of Houston. The respondents are home owners in the Addition. Seven suits were filed, one against respondent Couch and one against each of six other defendants. By order of the court they were consolidated and tried as one case. The relief sought in each case was to restrain the defendant therein from renting a room or rooms in his residence for lodging. Most of the lodgers are students in Rice Institute.

The trial court held that as a matter of law the renting of a room or rooms was violative of the restriction hereinafter mentioned, but since respondent had raised the issue of waiver of the restriction, special issues were submitted to the jury thereon. The jury found against the defense of waiver, and judgment was rendered by the trial court against each defendant, enjoining him from “renting a room or rooms” in his dwelling or elsewhere on his premises. On appeal the judgment of the trial court was reversed and judgment rendered dissolving the injunction. Tex.Civ.App., 313 S.W.2d 360.

The restriction relied upon is contained in a trust instrument executed by the developer of the Addition in 1922, filed for record in Harris County, and made a part of each deed by reference. The instrument consists of several pages. After formal parts the purpose of the restrictions is stated in this language: “That whereas the said First Party originated a plan or project to purchase, improve and subdivide as a high-class and exclusive residential and business community that certain tract or parcel of land * * Then follow a number of restrictions in furtherance of the plan.

They deal with prohibited businesses, and at some length provide that buildings in certain areas shall conform to specifications outlined upon designated lots. Certain sections deal with the materials of which the buildings may be constructed, the minimum cost thereof, different mínimums being provided for different lots. There are restrictions as to setback requirements.

The particular restriction involved in this case reads as follows: “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.” The record reflects that the number of-roomers in the homes in question varied from one to six. Petitioners do not contend-that the number is important.

They do not claim that the man renting to six roomers stands in any different position from the man who rents to one, and neither does the judgment make any distinction in that regard, but enjoins each and every defendant from renting one or more rooms. We do not, therefore, have the question of whether the defendant who rents to six roomers is conducting a rooming house. This case must be decided just as if there were but one defendant and he were renting one spare room. The restrictions imposed upon Southampton Place Addition have been before the appellate courts in two cases—Pardo v.

Southampton Civic Club, Tex.Civ.App., 239 S.W.2d 141, 144, 145, wr. er. ref., and Rudy v. Southampton Civic Club, Tex.Civ.App., 271 S.W.2d 431, 432, wr. er. ref. n. r. e. Petitioners rely upon those cases and take the position that they decide the very question here involved in their favor. The fact situations in those cases are different from that in the instant case. The Court of Civil Appeals has disregarded the language in those cases on the ground that it was dicta.

While the principal question decided in the Pardo case involved the use of property for business purposes, the opinion reflects that the case called for the construction of the restrictions, and in construing the particular restrictions here involved, it was held that lots in the Addition were “restricted to the exclusive use of a residence of a single family.” We refused the application for writ of error without qualification. We accept that construction and will base our opinion thereon.

That opinion does not undertake to define what is meant by the term “single-family residence.” In the Rudy case, in which we refused writ of error, no reversible error, the opinion approved the instruction of the trial court that the word family includes “parents, children and domestic servants.” That definition is entirely too restrictive, and we do not approve'it. It would exclude a dependent mother or an invalid brother or sister.

If the question were whether the operation of a rooming or boarding house as a business would violate the restriction under review, cases are legion holding that such operation would violate the restrictions, and a number of cases so holding are cited in annotations 124 A.L.R. 1011 and 14 A.L.R. 2d 1376. Some of those cases involved either expressly or by construction restrictions limiting the use to a single-family residence. See Sayles v. Hall, 210 Mass. 281, 96 N.E. 712, 41 L.R.A.,N.S., 625; Pierce v. Harper, 311 Mo. 301, 278 S.W. 410; Hooker v. Alexander, 129 Conn. 433, 29 A.2d 308; Mayer v.

Livingston, 11 Misc.2d 287, 172 N.Y.S.2d 45; Baddour v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18, 124 A.L.R. 1003. We are referred to no case, and have discovered none, which holds that the renting of a single room in a dwelling is violative of a single-family residence restriction. On the other'hand, there are a number of cases containing language which, although not perhaps necessary to the decision, would support the holding that where the renting is incidental to the use of the premises as a family home, there is no violation of a single-family residence restriction. Typical of such cases are Kiernan v.

Snowden, Sup., 123 N.Y.S.2d 895; Baddour v. City of Long Beach, supra; Boston-Edison Protective Ass’n v. Paulist Fathers, Inc., 306 Mich. 253, 10 N.W.2d 847, 148 A.L.R. 364. And it has been many times stated in opinions that the use of premises as a residence with incidental renting of a room does not constitute the operation of a rooming house. See Carey v. Lauhoff, 301 Mich 168, 3 N.W.2d 67; Singelakis v. Davidson, 117 N.J.L. 332, 188 A. 443; Rosenblatt v. Levin, 127 N.J.Eq. 207, 12 A.2d 627.

Webster’s New International Dictionary, 2d Edition, 1935, has this definition of the word family: “a household, including parents, children, and servants, and, as the case may be, lodgers or boarders.” That definition has been generally accepted by the courts and applied in varying contexts. See cases in 16 Words and Phrases, Family, 189; and under “Family — Particular Persons Included,” 35 C.J.S. Family p. 742.

A review of all of the many authorities leads to the definite conclusion that the exact question here presented has never been authoritatively decided, but the spirit and reasoning of the cases generally lead to the conclusion that the renting of a room or rooms in a private residence, which is merely incidental to its use as a family residence, does not violate a restriction limiting the use of the property to a single-family residence. There is no language in the restriction here under review which specifically forbids the renting of a room or rooms.

To read that prohibition into the restriction would be violative of the settled rule that in construing covenants restricting the use of land all doubt should, as a general rule, be resolved in favor of the freer use of property and against restrictions. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465; Couch v. Southern Methodist University, Tex.Com.App., 10 S.W.2d 973. As indicated above, we do not have before us the question of whether any of the defendants were operating a rooming house as a business, and, therefore, do not write on that question.

But on the precise question here presented we hold that the Court of Civil Appeáls correctly held that the renting of a room in a single-family residence is not prohibited by the restrictive covenants here involved. To hold otherwise would bring about unreasonable and unjust results. To illustrate : a husband and wife purchase a home in an area restricted to single-family residences, in which they rear a family; their children mature and depart to establish homes of their own; the parents continue to occupy the family home in which rooms formerly occupied by their children are now spare rooms.

To adopt petitioners’ construction of the restrictions in this case, the result would be that the parents would be precluded from renting even one room. To carry the illustration further, should either the mother or father die, is the survivor to be prohibited from taking in a roomer for the reason that the use of the premises is restricted to a single-family residence? We think not. A family home in which a spare room is incidentally rented is nonetheless a single-family residence. Judgment of the Court of Civil Appeals affirmed. GRIFFIN, J., dissenting.