Weaver MOORE et al., Petitioners, v. Lloyd H. SMITH et al., Respondents, 443 S.W.2d 552

CALVERT, Chief Justice. The respondents, as plaintiffs, sought a trial court judgment declaring that certain building and use restrictions imposed by a written instrument on lots in “Shadyside”, an exclusive residential subdivision of the City of Houston, were of permanent or indefinite duration, and, alternatively, for other relief, the nature of which is unimportant to our decision. Petitioners, as defendants, sought a judgment declaring that the restrictions would terminate on June 30, 1969, and, alternatively, that they were invalid, ineffective and unenforceable.

The trial court rendered judgment on August 4, 1966, declaring that the restrictions would expire automatically on June 30,1969. The judgment also declared that the restrictions were not otherwise invalid, unreasonable or unenforceable. The plaintiffs appealed to the court of civil appeals where their principal complaint related to the trial court’s declaration that the restrictions would expire. The defendants filed a cross-appeal in which they complained of those portions of the judgment which declared the restrictions valid and enforceable until they expired.

The court of civil appeals reversed that part of the trial court’s judgment which declared that the restrictions would expire on June 30, 1969, and rendered judgment that they are of perpetual or indefinite duration; expressly affirmed that part of the judgment declaring the restrictions to be valid and enforceable until June 30, 1969; and purported to reverse the trial court’s judgment in another respect to be mentioned later in this opinion. 425 S.W.2d 856. As the case reaches this court, the principal question to be decided is whether the restrictions will expire automatically on June 30th.

We hold that they will not. Shadyside was developed by J. S. Cullinan, a prominent Houston business and civic leader, and was created by a written instrument executed on July 1, 1919 by Cullinan, as grantor, and by W. W. Moore, Henry Stude and H. A. Kipp, as trustees. The instrument is quoted in full in the opinion of the court of civil appeals. 425 S.W.2d 857-861. Only those provisions deemed to be important to our decision will be quoted in this opinion. The instrument is captioned, “Agreement Creating Shadyside”.

It contains eight unnumbered paragraphs, followed by nineteen numbered paragraphs which are followed, in turn, by two more unnumbered paragraphs. The opening sentence of the first unnumbered paragraph begins with this language: “THIS TRUST AGREEMENT AND CONVEYANCE * * * ” The second and third paragraphs are unimportant to our decision.

The fourth unnumbered paragraph recites that the grantor as owner of certain land has subdivided it into residence lots, roadways, etc., as shown on an attached map, and that he is desirous of “making provisions for administration of the properties and of creating certain restrictions in regard to the lots therein.” The attached map or plat depicts 24 lots, lettered A through X, ranging in size from 6/10ths of an acre to more than 5 acres, with each lot containing a delineated building space and planting areas. The fifth unnumbered paragraph is the granting clause of the instrument.

It recites that “in consideration of the premises” and “for the further purpose of creating a Trust as hereinafter defined,” the grantor does grant, bargain, sell and convey “unto the said Trustees above named, and to their successors as such * * * as long as this Trust shall endure, subject in all respects to the further terms of this instrument, all and singular the following property, to wit: [Here follows in unnumbered paragraphs 6 and 7 a description of tracts of land of 36 and 1.1 acres, respectively.]” The description of the 1.1 acre tract in unnumbered paragraph 7 is followed by this proviso: “ * * * provided, however, that of said property there is excepted from this conveyance and reserved to the Grantor, title to each and all of the twenty-four lots designated by letters upon said map from A to X, both inclusive, but in respect to such lots certain restrictions are provided and shall apply as hereinafter set forth.” The eighth unnumbered paragraph is in the form of an habendum clause.

It recites that the premises are to be held by the “Trustees, their successors and assigns * * * so long as this Trust shall endure; all, however, to be held in Trust for the uses, intents and purposes, and subj ect to the terms, restrictions, and conditions hereof as follows The first numbered paragraph limits the life of the trust. It reads: “1.

This Trust shall endure during the lifetime of the survivor of the three Trustees named herein, and for twenty-one years thereafter; not, however, to exceed the period ending June 30, 1969.” Paragraphs 2, 3, 4, 5, 6, 7 and 8 prescribe the duties of the trustees with respect to the property conveyed; provide for the appointment and qualification of successor trustees; designate the lot owners as beneficiaries of the trust, and define their rights and obligations with respect to the property in the trust.

Paragraph 9 directs attention to the fact that each lot contains a delineated building space and a separately designated planting space, and provides: “[A] 11 buildings and other overhead structures shall in every case be confined to such Building Space, and no such shall be erected on the Planting Space.” Paragraph 10 provides: “10.

There shall be but one home erected on each lot, the construction of which shall be commenced within two years from the date of the sale of such lot.” Paragraph 11 authorizes the trustees to eliminate building lines if an owner of two or more lots wishes to use them as a single residence site.

Paragraph 12 prescribes a limited area, five feet in width, in which poles, lines and overhead wires may be erected, and continues: “ * * * but no such shall be permitted on any other portion of said premises; but in lieu of such, underground conduits for wires, and pipes for water, gas, etc., shall be provided and located on each lot in the space reserved therefor * * *.” Paragraphs 13, 14, and IS provide that the trustees may become lot owners, and that they may charge to lot owners expenses legally incurred against the properties, but that they may not by their contracts bind themselves or the other lot owners personally.

Paragraph 16 makes the right to use the property conveyed in trust an easement appurtenant to each lot. Paragraph 17 reads: “17.

No business house or houses, saloon, hospital, public boarding house, place of public entertainment, store, livery stable, or other place of business or public resort, shall ever be erected on any part of said land, nor shall any telegraph, telephone or electric light poles or overhead structures ever be erected on any part of said property except on a space five feet in width along the West line of the larger tract.” Paragraph 18 provides that if the grantor or any of the lot owners shall infringe or omit to perform “any of the covenants, conditions, or restrictions * * * relating to such lots or to any other premises herein described * * * it shall be lawful for the Trustees for the time being * * * ” to file and prosecute injunction or damage suits for themselves or on behalf of the lot owners.

Paragraph 19 provides that the title to all property in the trust shall, upon termination of the trust, vest in the City of Houston for the benefit of the public, unless the trustees, by direction of a majority of the lot owners, shall provide otherwise. The first unnumbered paragraph following the nineteen numbered paragraphs authorizes the trustees and their successors to employ collectors, accountants and other agents at the expense of the trust, and provides that each trustee shall be liable only for his own willful defaults. The second such unnumbered paragraph is the attestation clause.

The instrument and the map were recorded in the office of the County Clerk and all conveyances of lots in the subdivision were made with reference thereto. Petitioners do not contend, but expressly disavow any contention, that the twenty-four lots on which the building and use restrictions are imposed are a part of the trust res. They thus recognize that the effect of the exception and reservation quoted above from unnumbered paragraph 7 was to place in the trust, as a part of the trust res, only the roadways, sidewalks, esplanades, etc.

What petitioners do contend is that the written instrument, when viewed and considered from its four corners, clearly discloses that it was the intention of Cullinan, the grantor-trustor, to create a “general plan or scheme for the development, use, maintenance and management of Shadyside as a residence area” for a limited period of time, and thus that the restrictions on lots, although not a part of the trust or governed by the trust provisions, should, nevertheless, terminate when the trust and the trust provisions terminate. The trial court agreed with this contention.

The court of civil appeals disagreed with it. We disagree with it and agree with the court of civil appeals. The intention of the grantor-trustor, Cullinan, to restrict the lots against use for business or commercial purposes in perpetuity or indefinitely is clearly evidenced by the language of paragraph 17. He said, in effect, that the lots in Shadyside should never be used for business or commercial purposes, and that no utility poles or lines should “ever be erected on any part of said property” except in a particular space, five feet in width.

How he could have expressed an intention to prohibit use of the lots for business or commercial purposes in perpetuity or indefinitely in language which was plainer, less ambiguous, or more positive, can hardly be imagined. We have held that, in interpreting a written instrument, the language used by the parties to the instrument will be given its plain grammatical meaning unless it appears that to do so will defeat the intention of the parties as clearly evidenced by other provisions of the instrument. Fox v. Thoreson, 398 S.W.2d 88, at 92 (Tex.Sup.1966).

A careful analysis of the other provisions of the instrument before us does not disclose a different intention from that so clearly expressed by the language of paragraph 17. To the contrary, the other provisions of the instrument lend support to that expression of intention; and, while the other building and use restrictions contained in the instrument are not made perpetual in express language, we are satisfied that they were also intended by Cul-linan to be of perpetual or indefinite duration.

Among the latter restrictions are those contained in paragraphs 10 and 12 providing that only one home may be erected on each lot, and that, except in a space five feet in width, all conduits for electric lines and pipes for water, gas, etc., must be buried. Cullinan quite obviously blended both trust provisions and property restrictions into one instrument.

He declared, however, that in so doing, he had two purposes: (1) to make “provisions for administration of the properties,” and (2) of “creating certain restrictions in regard to the lots therein.” He thus indicated that the trust provisions and property restrictions were to exist separately. The life of the trust and its provisions were expressly limited by paragraph 1 to a minimum of twenty-one years and a maximum of fifty years. No such express provision limited the life of the restrictions, although it would have been a simple matter in writing paragraph 1 to limit their life also.

To the contrary, an intention was declared in the instrument that the restrictions should “apply as hereinafter set forth,” and the restrictions thereafter set forth are unlimited or are expressly made perpetual. The very wording of paragraph 1 indicates that the limitation therein contained was intended to make certain that the trust would not violate the rule against perpetuities. There was no similar reason for limiting the life of the restrictions.

All of these considerations point to only one reasonable conclusion and that is that the parties to the instrument creating Shadyside did not intend that the building and use restrictions imposed on the lots should expire with expiration of the trust.

As indicating that it was Cullinan’s intention that the property restrictions should terminate when the trust terminates, pe-tioners point to these principal considerations: (1) the phrase “This Trust” as used in the agreement is “intended to refer to the general plan or scheme” disclosed by the instrument; (2) the arrangement of the various paragraphs indicates that the limitation contained in paragraph 1 was intended to apply to the entire plan or scheme of development; (3) the provision for eliminating building lines between lots where the owner of two or more lots wishes to combine them for building one residence, can no longer he given effect after the trust terminates; (4) the provision requiring that a home be erected on a lot within two years after its purchase indicates a limited plan or scheme for development; (5)-a provision authorizing the granting of utility easements by the trustees will be nullified when the trust expires; (6) a provision for improvement by the trustees of streets, sidewalks, parkways, etc., and for collecting the cost thereof from the lot owners will be nullified with termination of the trust; and (7) the authority given the trustees to sue to enforce the covenants, conditions and restrictions and to recover damages for their breach indicates a general plan or scheme for the entire project.

We do not agree that these considerations furnish a reasonable basis for holding that Cullinan intended the building and use restrictions to terminate when the trust should terminate. To hold with petitioners would require that the restrictions be limited by implication squarely in the face of the provisions of paragraph 17 for perpetual restrictions.

It is nearly always possible to find some provision in a lengthy written instrument which seems to some extent to be out of harmony with the main thrust of the instrument, but such provision or provisions should not be permitted to obscure the otherwise clearly indicated intention of the parties to the instrument. We conclude that the building and use restrictions imposed by the written instrument in question on the lots in Shadyside will not expire on June 30th, but are of permanent and indefinite duration.

Petitioners also contend before this court that restrictions which limit the use of a lot to one single family dwelling permanently, particularly when the lot is as large as those in Shadyside, are unreasonable restraints on the use and alienation of property and are, therefore, void and unenforceable. They say that this court has not passed directly on the question, and that contrary holdings by the courts of civil appeals are generally dicta. For such holdings, see State v. Reece, 374 S.W.2d 686 (Tex.Civ.App.—Houston 1964, no writ); Cornett v.

City of Houston, 404 S.W.2d 602 (Tex.Civ.App.—Houston 1966, no writ); Logan v. Bush, 220 S.W.2d 669 (Tex.Civ.App.—Galveston 1949, writ ref’d n. r. e.); Abernathy v. Adoue, 49 S.W.2d 476 (Tex.Civ.App.—Beaumont 1932, no writ). In Morton v. Sayles, 304 S.W.2d 759 (Tex.Civ.App.—Eastland 1957, writ ref’d n. r. e.), the court held that restrictions limiting use of property to residential purposes, and containing no provision limiting the life of the restrictions, would “run forever” rather than for a reasonable time.

We are not prepared to hold that restrictions which limit the use of property to residential purposes permanently or indefinitely are void and unenforceable per se. The general rule seems to be otherwise. See 20 Am.Jur.2d 748, Covenants, Conditions, etc., § 183. As to these particular lots, the trial court found as a fact, as pointed out by the court of civil appeals, that limitation of their use for a single residence permanently was not at this time unreasonable. The finding is not attacked as being without support in the evidence. In the course of its judgment, the trial court recited that the “meaning,

interpretation and construction” of the instrument creating Shadyside could be and had been “resolved and determined by the Court by consideration of Said Instrument as a whole, and without resort to extrinsic or parole [sic] evidence,” and that the court found, adjudged and declared “that the intent with respect to any such matter” was “manifested by and from within Said Instrument itself.” The court of civil appeals interpreted this language to mean that, since the trial court found the written instrument to be unambiguous, parol evidence of facts and circumstances surrounding execution of the instrument could not be considered in its

interpretation. The court of civil appeals then held that such evidence could and should be considered in interpreting the instrument, even though the instrument was held to be unambiguous, and proceeded to reverse the trial court’s judgment in this respect and to render a declaratory judgment that such evidence could be considered in ascertaining intention. See 425 S.W.2d 864-866. We have no occasion to differ with the holding of the court of civil appeals concerning the right or duty of the courts below to consider evidence of surrounding facts and circumstances in interpreting the Shadyside instrument.

However, we differ with the court concerning the right or duty of the courts to render a judgment declaring what evidence can and cannot be considered in a declaratory judgment action. Matters which may be the subject of declaratory judgments are itemized in

Article 2524-1, Vernon’s Texas Civil Statutes, as “rights, status, and other legal relations.” What evidence can or cannot be considered, in the course of determining the “rights, status and other legal relations” of litigating parties, cannot be the subject of a declaratory judgment. The judgment of the court of civil appeals is modified to eliminate therefrom the declaration concerning consideration of pa-rol or extrinsic evidence, and, as thus modified, the judgment of the court of civil appeals is affirmed. HAMILTON, J., dissenting, joined by SMITH and GREENHILL, JJ. McGEE, J., not sitting. . Emphasis ours throughout.