Lead Opinion
The question is, Does a restrictive covenant in a deed providing that “[a]ll im
All parties own lots in Block 3 of Edge-mont Addition in the City of Austin, there being many costly and well-kept single family homes therein including those оf the plaintiffs. The Newman plaintiffs had resided upon their lot since 1960, the Stephenson plaintiffs on their lot since 1970. The Perlitz defendants purchased their lot in 1973 with knowledge of the restrictive cоvenants mentioned above. The lots of the parties are either adjacent or very close to each other.
Plaintiffs instituted this suit when they learned that the defendants had begun the сonstruction of a duplex upon their lot, only the foundation having been started at the time of the filing of suit. A temporary restraining order prohibiting further construction was continued in effect as a temporary injunction; but, upon the hearing on the application for the permanent injunction, tried to the court, the temporary injunction was dissolved and the permanent injunсtion was denied. Although the trial court filed findings of fact and conclusions of law (and refused to make additional findings or conclusions), the controlling facts are not in dispute.
Plaintiffs’ main contention, upon which all of their subsidiary points are based, is that the deed restrictions set out earlier apply to and prohibit the construction of the duplex by defendants since it would constitute more than one residence upon the lot. We disagree and affirm the judgment of the trial court.
Our decision is controlled by MacDonald v. Painter,
1. Having examined all of the restrictions “in context and apply[ing] to them the settled rules of construction, we conclude that the covenants in question are free of uncertainty and ambiguity.” (
2. The restrictions found in the deeds in this case (“used for residence purposes” and “[o]nly one residence shall be erеcted upon the premises”), in the language of Justice Pope in MacDonald, supra, “do not prohibit the construction of the duplexes.” (Id.)
3. “The terms ‘residence purposes,’ and ‘residences’ rеquire the use of property for living purposes as distinguished from uses for business or commercial purposes.” (citations omitted)
4. “According to most authorities, the terms, without other limiting words, do nоt prohibit duplex living units.” We find no such limiting words in our deeds.
With these guidelines established, we turn now to the series of out-of-state cases cited by Justice Pope in support of our last quotation from that opinion. The first case cited, Bear v. Bernstein,
The Bear Court framed the question in this language:
“The question is, does a restrictive covenant in a deed providing that the land shall be ‘used only for residential purposes * * * and that only one residenсe shall be erected on * * * [the] lot’ prohibit the erection of a duplex or four-unit apartment house.” (36 So.2d 483 )
After considering many authorities, the Court concluded that the restrictions quoted in the question did not prohibit the con
The second case cited in MacDonald was Weber v. Graner,
The Weber Court concluded that the аpartment house would not violate the restrictive covenant, saying:
“Thus these premises are ‘to be occupied for residence purposes,’ and this is so whether the structure is occupied by one family or a number of families. The word ‘residence’ has reference to the use or mode of occupancy to which the premises may be put. If it had beеn intended that the improvements to be placed on this property were to be for the use of one family only, words indicating such an intention undoubtedly would have been used, as is frequently done, such as ‘a single residence,’ ‘a private residence,’ ‘a private home,’ ‘a private dwelling,’ ‘a single family dwelling,’ or ‘a single dwelling house.’ ” (Id.)
Later comments by the Weber Court indicate that court placed emphasis upon the singular “a” in each of the illustrations given in the foregoing quotation. (Id. at 177)
In the third case cited by Justice Pope, Baker v. Smith,
Finally, Justice Pope cited Sporn v. Overholt,
“It appears to be the generаl rule that any kind of a building devoted exclusively to residence purposes, whether a duplex or an apartment house may be erected under a covenant limiting the use of the property to residence purposes. * * Generally, the restrictions using the unqualified terms ‘residence’ or ‘dwelling’ have been held merely to limit the type of use to be made of the property and not tо forbid the erection of a residence for occupancy by several families such as a duplex or double house which, under the weight of authority, has been held permissible, as the terms ‘residence’ and ‘dwelling’ have the effect merely to limit the property to living quarters, as distinguished from business or commercial uses.” (Id. at 831, emphasis supplied)
The dissent, citing Green v. Gerner,
It is not for this court to grudgingly or narrowly restrict the plain import of decisions of our Supreme Court. When a
Under оur view of the record, we do not find it necessary to discuss the subsidiary points brought forward by the plaintiffs. Under the undisputed facts of this case, the trial court properly refused to grant the permanent injunction sought by the plaintiffs and the remaining points of error are immaterial.
The opinion in MacDonald v. Painter, supra, controlled the action of the trial court; and, the same opinion dictates an affirmation of the judgment denying the permanent injunction. Accordingly, the judgment below being correct, it is
Affirmed.
Dissenting Opinion
(dissenting).
I respectfully dissent. I do not agree that this case is controlled by MacDonald v. Painter, supra. The significant factual situation is too dissimilar. In MacDonald, the restrictive covenant says nothing about one residence, while it is clear in the case before us that only one residence can be constructed upon the lot in question. The Supreme Court in MacDonald dоes not say a duplex is one residence. (The conclusion reached by the majority in the case before us.)
In my opinion, MacDonald merely tells us that if the restrictive covenant prohibits the use of property for anything except “residence purposes” that the erection of multiple dwellings is not forbidden. See the explanation at page 182 togethеr with the quotation from
In the case before us the restriction says specifically that only one residence can be erected upon this lot. In MacDonald, the Supreme Court found the use of the term “residences” shows an intent to permit more than a single residence. No such wording appears in the restriction before us.
I would hold that this case is controlled by Green v. Gerner,
It is clear to me that the Supreme Court in MacDonаld, when discussing Green v. Gerner at page 184, was not intending to overrule Green v. Gerner, but merely to distinguish it. As stated above the term “one residence” is the difference between these two lines of decisions. Apparently, there is no case in Texas holding that a duplex is “one residence.”