Southampton Civic Club v. Couch (159 Tex. 464, 1958)

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