On Motion for Rehearing. The arguments of appellants on rehearing, much extended both as to intrinsic matter and indulgence of time in presentment, very forcefully urge through new counsel who succeeded their former one on his accession to this bench, have been carefully considered; this court, however, composed as it is of the same two members who constituted its majority in rendering the main ones of its former judgments the appellants invoke herein in their favor, are constrained to adhere to our former determination of this cause; in other words, they do not see any such a conflict as appellants now allege between its holding this time and those in such causes as Gordon v. Hoencke (Tex. Civ. App.) 253 S.W. 629, Green v. Gerner (Tex. Civ. App.) 233 S.W. 615, and Plaster v. Stutzman (Tex. Civ. App.) 8 S.W.2d 750; nor, notwithstanding a slight error in recitation on the last page of its original opinion wherein it stated this cause to be on a "general parity" with such cases as Pierson v. Canfield (Tex. Civ. App.) 272 S.W. 231, when it only meant the comparison to apply to the purpose common to both those cases for the garage-house to be occupied only temporarily, do they think their holding so made here to be in anywise in conflict with the holding of our Supreme Court in White v. Hansen, 36 S.W.2d 456, which is so clearly distinguishable on the facts that the matter does *Page 121 not appear to them to be even debatable; in the first place, that opinion itself, after first distinguishing this cause from the Plaster Case, supra, makes plain that the action there was by both the promoters and the other lot owners together as plaintiffs, instituted immediately on the beginning of construction on the house there involved, and that it rested upon plain restrictive covenants that were definitely established, that ran with the land, a breach of which expressly, ipso facto, and immediately, caused a reverting of the title itself to the grantor of the lot; no issue being raised either as to such kind and quality, or as to the validity of the restrictive covenants there in question; that situation is indeed a far cry from that obtaining here, which has been fully outlined, without successful attack, in our original opinion; furthermore, there were none of the fact issues as to acquiescence, waiver, abandonment, and general meaning of such restrictions as were found to be actually existent in this instance.
Moreover, it indisputably appears that these appellants literally locked their barn after the horse had gone, in that they took no action whatever towards stopping the construction of this garage-house, although admittedly having known of it and many others like it promiscuously throughout the addition that had been likewise so built and used for practically the ten years of the addition's existence, until the house was virtually complete; not even then did they go further than to pray for a mandatory injunction — one among the harshest of legal visitations — against the "erection" only of such house; in such instance, the matter was clearly one, under all the facts, of what the sound discretion of the trial court called for. Morrison v. Work, 266 U.S. 481, 490, 45 S. Ct. 149, 153, 69 L. Ed. 394. That it called for the order entered, we have no doubt.
As originally pointed out, appellants made no attack upon the verdict on the special issues submitted — only contending they should not have been submitted — wherefore, on the appeal all those findings, if material, must be regarded as the established facts; yet their motion for rehearing argues at great length for a different state of the evidence, especially concerning the question as to whether or not there had been a general acquiescence in the erection and use of many garage-houses, prior to the building of principal dwellings, for the ten years of the addition's existence, such as that of the appellees; but obviously this may not prevail against the contrary findings so made by the jury.
Without further discussion, reiterating its conclusion that the trial court did not err in so submitting the cause to the jury, and that the proper judgment was rendered upon the evidence and its verdict, the motion will be overruled.
Overruled.
CODY, J., not sitting.