This appeal was brought to question an order temporarily enjoining the appellant from violating a deed restriction which limits her use of her homeplace to “residential purposes exclusively.” We affirm.
The appellees pleaded, and the evidence shows without contradiction, that they own and reside on Lot 4, Block 3, of the Wie-busch Addition, Part No. one, to the City of Rоbinson in McLennan County; that the appellant owns and resides on Lot 3, Block 3, of said addition; that duly rеcorded deed restrictions are in effect in said addition and were in effect when these parties purchased their respective lots; and that restriction number one provides, “All of such lots shall be used for residential purposes exclusively.” Additionally, the appellees allеged that the appellant is preparing to open a business on her lot in violation of the deed restriction and to the appellants’ irreparable damage. The appеllant responded with a lengthy answer which we need not detail.
The appellant asserts that there is no evidence of a violation or threatened violation by her of the deed restriсtion. There is evidence that the appellant wants to operate a retail florist shop at her residence; that she canvassed the neighborhood seeking permission to do so from the other owners in the addition; that after the ap-pellees, through their attorneys, informed the appellant that they disapproved and assured her they would bring legal action to prevent a violation of the deed restriction by her, she took a course in floral designing at а cost to her of approximately $500, and closed in a garage and made other changes in her residence toward accommodating a florist shop at an expense of over $6,000; that her plans call for a retail business which will be 90% delivery and 10% walk-in trade; that the business hours will be frоm 9:00 A.M. to 5:00 P.M.; and that she expects to profit from the business so that she can supplement her othеr income. While there is other proof of similar import, this evidence is legally sufficient to show an intended violation of the deed restriction by the appellee.
The appellant рleaded waiver of the restriction, and now asserts that this defense is conclusively established by the proof of other business ventures within and without the subdivision in question. We disagree. “A waiver takes place where one dispenses with the performance of something which he has a right to exaсt, and occurs where one in possession of any right, whether conferred by law or by contraсt, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to reply upon it.”
Ford v. Culbertson,
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The seventh restriction in the deeds provides, “No noxious or offensivе activity shall be carried on upon any lot, nor anything be done thereon which may be or beсome an annoyance or nuisance to the neighborhood.” Because there is no еvidence that the appellant’s intended use of her residence as a florist shop would bе a “noxious or offensive activity” or a “nuisance to the neighborhood” she says the tempоrary writ of injunction must fall, asserting in effect that restriction number seven is a limitation on the “residential use only” restriction. We overrule this contention. The appellant’s use of her house as a florist shop would be a business use in violation of the first restriction. The activities condemned in the sevеnth restriction would not necessarily arise by reason of, or only from, a commercial use of the property. The first and seventh restrictions are each independent. Neither is a limitation on the other.
Vaccaro v. Rougeou,
Trial courts are endowed with broad discretion to grant or deny an appliсation for temporary injunction, and the narrow question on appeal from such actiоn is whether the order of the trial court constitutes a clear abuse of discretion.
Janus Films, Inc. v. City of Fort Worth,
The appellant’s points and contentions are overruled. The judgment is affirmed.