Southampton Civic Club et al v. O. Dean Couch, Jr., et al., 159 Tex. 464

Mr. Chief Justice Hickman delivered the opinion of the Court. 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. 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 púrpose 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, 239 S.W. 2d 141 Wr. er. ref., and Rudy v. Southampton Civic Club, 271 S.W. 2d 431, 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, 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, 123 N.Y.S. 2d 895; Baddour v. City of Long Beach, supra; Boston-Edison Protective Assn. 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 Atl. 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, 189; and under “Family — Particular Persons Included,” 35 C.J.S. 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 Texas 266, 153 S.W. 2d 465; Couch v. Southern Methodist University, 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 Appeals 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. Mr. Justice Griffin dissenting. Opinion delivered December 31, 1958.

ON REHEARING PER CURIAM: On original submission we assumed that a decision of a question of law was decisive of all of the consolidated cases. We remain of that opinion. We have concluded, however, that we should not have affirmed the judgment of the Court of Civil Appeals. Evidence was introduced on the trial of the several consolidated cases. If that evidence satisfied the trial court that the several respondents were violating the property restrictions or were threatening to do so, it was its duty to enter a judgment containing proper injunction decrees.

A judgment containing a separate injunction decree against each of the respondents was entered.

As to each respondent the injunction runs against “renting a room or rooms upon their [his or her] premises, or any part thereof, and from otherwise using their [his or her] premises, or any part thereof, towit: [Here the property is described] for any purpose other than as and for a private residence for the members of a single family, including the bona fide servants, if any, engaged on the premises in the domestic service of such family, until April 15, 1973,” and as long thereafter as the restrictions in the trust agreement may be extended in accordance with its terms and provisions.

None of the injunction decrees have been attacked by respondents on the ground that they are without support in the evidence. It must therefore be assumed that the evidence supports a finding that each of the respondents was violating, or threatening to violate, the restrictions as the trial court interpreted them. The points of error presented by the respondents in their brief in the Court of Civil Appeals, sustained by that Court, attacked the decrees as being erroneous, as a matter of law, in so far as they enjoined the various respondents from renting a room or rooms upon their premises.

The argument was that the restrictions in the trust deed did not prohibit the renting of rooms, and that the trial court erred in entering decrees which assumed they did. It was on that law question that issue was joined on appeal.

On original submission we said that the spirit and reasoning of the many authorities on the general subject “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.” The first part of the several decrees which prohibits the several respondents from renting a room or rooms is therefore patently erroneous as a matter of law. Its language is broader and its legal effect is more restrictive than the law authorizes.

The last part of the injunction decrees does no more than restate the terms of the property restrictions contained in the trust deed as they were interpreted in Pardo v. Southampton Civic Club, Texas Civ. App., 239 S.W. 2d 141, writ refused, and Rudy v. Southampton Civic Club, Texas Civ. App., 271 S.W. 2d 431, writ refused, n.r.e. The Court of Civil Appeals correctly reversed the trial court’s judgment because of the erroneous inclusion in each of the decrees of a prohibition against any and all renting of rooms. We have concluded, however, that judgment should not have been rendered for respondents.

All of the consolidated cases were obviously tried on a wrong theory. Under such circumstances it is not only proper but better serves the interests of justice to remand for retrial. Rules 434 and 505, Texas Rules of Civil Procedure; London Terrace, Inc. v. McAlister, 142 Texas 608, 180 S.W. 2d 619, 620-621; Eaton v. R. B. George Investments, Inc., 152 Texas 523, 260 S.W. 2d 587, 591-592.

If and when the several cases are retried, whether on the same or other evidence, it will be the duty of the trial court to determine whether any of the several defendants are violating or threatening to violate the restrictions contained in the trust deed as we have interpreted them. Proper injunction decrees should then be entered only against those of the defendants who are. The nature and extent of the use of his premises for purposes other than as a residence for the members of his family and his domestic servants will determine whether an injunction decree is to be. entered against a particular defendant.

If the evidence establishes as a matter of law, or if the trial court finds as a fact on conflicting evidence or as a reasonable inference from the evidence, that a particular defendant is operating a rooming or boarding house on his premises as a business, or is using an establishment on his premises, separate and apart from his dwelling house, for renting as a source of financial gain, or is renting space to others in his dwelling house as a separate housekeeping unit, or is using his dwelling house primarily as a source of financial gain rather than as a residence for himself and his family and domestic servants, that activity should be enjoined.

On the other hand, if the evidence establishes as a matter of law, or if the trial court finds as a fact on conflicting evidence or as a reasonable inference from the evidence, that only the dwelling house on the premises of a particular defendant is being used as a place of residence and that it is being used primarily as a residence for the owner and his family and domestic servants, no injunction should issue against the incidental renting by the defendant of a room or rooms to others. Petitioners’ motion for rehearing is granted and our judgment entered herein on December 31, 1958 is set aside.

In so far as the judgment of the Court of Civil Appeals reversed the judgment of the trial court the judgment is affirmed, but in so far as the judment of the Court of Civil Appeals rendered judgment for the respondents it is reversed and the cause is remanded to the trial court for trial in keeping with this opinion. Costs in this court are divided equally between the parties. The parties will have fifteen days from this date in which to file further motions for rehearing. Justice Hamilton, not sitting. Opinion delivered March 18, 1959.