Not being able to agree to the construction given by the majority opinion to the language contained in the deeds to appellees, viz. "It is fully understood and agreed that at any time any of the above conditions, so far as they affect the property on Gaston Avenue between Paulus and Nesbitt streets, may be amended by a vote of three-fourths of the owners on said street voting according to the front foot holdings, each front foot counting as one vote," and the disposition of the appeal being made thereon, I am impelled from a sense of duty to express my views in reference thereto. I wish to supplement the statement of facts contained in the majority opinion by adding thereto copy of the plat of Munger Place Heights, contained in the statement of facts, viz.:
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
The majority opinion holds that the language "may be amended by a vote of three-fourths of the owners on said street voting according to front foot holdings, each front foot counting one vote," considered in the light of the general plan or scheme of development, the benefits to accrue to the vendor and vendee of each lot and to the vendees of the lots as a class of Munger Place Heights, had reference to and only meant that, in order to remove the restrictions contained in the deeds to appellees, it was only necessary that three-fourths of the owners of lots fronting on the south side of Gaston avenue between Paulus and Nesbitt streets should vote in favor of the removal of such restrictions, and that said language so considered in connection with said scheme, etc., did not express the meaning that such restrictions could only be amended by a vote of three-fourths of the owners on Gaston avenue from Skillman street to Linden avenue voting according to front foot holdings.
In order to properly ascertain the real intention evidenced by the provision of the deeds authorizing such amendment, same should be considered in the light of the surrounding circumstances, the objects to be accomplished, and the benefits intended to accrue to the purchasers of the lots, individually and collectively. In this connection, *Page 595 wish to quote from the opinion of the Supreme Court of Appeals of Virginia, in the case of Elterich v. Leicht Real Estate Co., 130 Va. 224,107 S.E. 735, 739, 18 A.L.R. 441, the following:
"As said in Kitching v. Brown, supra, 180 N.Y. at page 419, 73 N.E. at page 242, 70 L.R.A. at page 745:
"`When a word or phrase used in a covenant has more than one meaning, judicial knowledge of existing circumstances and conditions is indispensable to a correct exposition of the law upon the subject, and to that end parol evidence is admissible' (citing cases).
"`One of the familiar rules applicable to the interpretation of ambiguous covenants and agreements is to ascertain, as nearly as may be, the situation of the parties, their surroundings and circumstances, the occasion and apparent object of their stipulations, and, from all these sources, to gather the meaning and intent of their language' (citing numerous cases).
"As said in the note in 45 L.R.A. (N. S.) supra, at page 727: `Regard must be had to the object which the covenant was designated to accomplish, and the language used is to be read in an ordinary or popular, and not in a legal and technical sense' (citing numerous cases).
"As said of covenants such as that in question before us, 45 L.R.A. (N. S.) 728: `The language used must be given its obvious meaning, and be construed in accordance with the intention of the parties, assuming that the restriction was put into the deed not simply for the benefit of the grantor, but for the benefit of every owner of property and of every resident on the street' (citing a Michigan case, Harris v. Roraback,137 Mich. 292, 109 Am. St. Rep. 681, 100 N.W. 391).
"As said (45 L.R.A. [N. S.] 728): `Particular words in such a covenant are to be given the meaning that was commonly given to them at the time the instrument containing the covenant was executed' (citing a New York case, White v. Collins Bldg. Constr. Co., 82 A.D. 1, 81 N.Y.S. 434).
"And as said (45 L.R.A. [N. S.] 727): `The primary rule of interpretation of such covenants is to gather the intention of the parties from their words by reading, not simply a single clause of the agreement, but the entire context, and where the meaning is (otherwise) doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met' (citing a number of cases), `or in connection with the surrounding circumstances at the time the deed was executed' (citing cases)."
The writer thinks it must be conceded that a part of the general scheme or plan for making the addition a highly restricted residential district, and maintained as such, included the division of the addition into districts in which the restrictions contained in the deeds could be amended for the benefit of the owners of, and applicable only to, the lots in a particular locality, and that, as all of the owners of lots fronting on Gaston avenue had an interest in the preservation of said scheme or plan, under which said lots were, respectively, sold and purchased by them, had the right conferred upon them to vote on a proposed amendment to the restrictions in any one of said particular localities fronting on Gaston avenue. This construction of the language authorizing restrictions to be amended the writer believes to be in accord with such general scheme or plan, and that the holding of the majority opinion is in conflict therewith, as it confers upon a small minority of the owners of lots fronting on Gaston avenue the right to amend, or practically to destroy, such general scheme or plan, although a majority of the owners on Gaston avenue should be opposed to the making of the proposed amendment to the restrictions that apply alike to all of the property owners on Gaston avenue; the benefits thereof being just as valuable to the owners denied the right to vote on such proposed amendment as same could be to the small minority voting for and adopting the amendment. What of the instant situation? We have the owner of property subdividing the same and placing it upon the market as a highly restricted residential addition to the city of Dallas, selling and conveying lots to the respective purchasers thereof, containing substantially the same identical restrictions necessary to accomplish the proposed result, and inserted in the conveyances the provision that such restrictions shall remain in force for a period of approximately fifty years, and to secure the observance of such restrictions the vendor retained a right of reversion of title in himself and his successors, in the event such restrictions should be violated. Therefore each deed forms an integral part of the means of preserving the scheme or plan under which said addition was created and lots sold, and that there should be uniformity with reference to any changes that might be desired to be made in such restrictions the grantor inserted a provision for amending said restrictions in designated localities, viz. by a vote of three-fourths of the property owners on Gaston avenue voting on a basis of front foot holdings, each front foot counting one vote.
The language of the authority to amend the restrictions will have to be shorn of the commonly accepted meaning accorded to such verbiage to hold that it was only necessary to amend the restrictions contained in appellees' deeds that three-fourths of the property owners on Gaston avenue between Paulus and Nesbitt streets should have voted in favor of the amendment authorizing the *Page 596 construction of the apartment buildings as contended for by appellees.
Gaston avenue extends through the addition from Skillman to Linden avenue, and certainly under the scheme or plan that said addition was created and intended to be maintained, every owner of property in said addition located on both sides of Gaston avenue in certain respects is as vitally interested in the character of improvements to be placed on and in the use to be made of the lots fronting on Gaston avenue in one location as much so as in another. Therefore it is but in keeping with that feature of the general scheme or plan applicable to said addition in reference to the individual and collective rights of the owners of lots therein as to the improvements to be placed on such lots and the use to be made of same to hold that the language of the provision relied on by appellees is subject to the construction that, in order to amend the restrictions as to any property on Gaston avenue, regardless of where located, such amendment must be adopted by the vote of three-fourths of all owners on both sides of Gaston avenue in said addition.
This the writer believes to be the reasonable and natural construction of the language used and in harmony with the general plan or scheme for the development of said district. This only accords to the language used its natural effect, and is in conformity, not only with said general plan or scheme, but in accord with the rights of all of the owners of lots located in Gaston avenue, and harmonizes the rights of amendment as contained in the several deeds, respectively, conveying the lots in said addition fronting on Gaston avenue. The words "said street," as used in said provisions, necessarily refer back to Gaston avenue, and, there being no limitation in any conveyance as to what part of Gaston avenue is referred to, the holding that same only referred to the owners of property on that street between Nesbitt and Paulus streets can but have drastic effect up on the use and value of the lots located on Gaston avenue, as such construction will result in allowing the holders of 275 feet on the front side of Gaston avenue to destroy and render useless the general scheme or plan under which said addition was created.
In the case of Tabern v. Gates, 231 Mich. 581, 204 N.W. 698, it is held, "In construing a building restriction, court is not so much concerned with rules of syntax or strict letter of words used, as it is in arriving at intention of restrictor, if that can be gathered from entire language of instrument"; in the case of Donnelly v. Spitza,246 Mich. 284, 224 N.W. 396, it is held, "Covenants are to be construed with reference to present and prospective use of property, as well as specific language used and as whole"; in the case of Seeley v. Phi Sigma Delta House Corporation, 245 Mich. 252, 222 N.W. 180, "Language employed in stating restrictions is to be taken in popular sense"; in the case of Vaughn v. Lyon, 122 Okla. 179, 252 P. 1088, it is held, "Effect should be given intention of parties as shown by language in covenant restricting realty in connection with circumstances and object in view"; and in the case of Seibert v. Ware (Sup.) 158 N.Y.S. 229, the court held, "Building restrictions inserted in all deeds to lots in a high-class residence district should not be frustrated by strained construction of the language"; and to a similar effect is the holding in the case of Green v. Gerner (Tex.Civ.App.) 283 S.W. 615. In Couch v. Southern Methodist University, decided by the Commission of Appeals, 10 S.W.2d 973, 974, we find the following comprehensive language used: "So that, after all lots, or as in this case a majority thereof, are sold, the conditions become primarily for the benefit of purchasers. * * * The first rule in construing a written instrument always is to seek to arrive at the intention of the parties to the end that their purpose may be effectuated. There are many artificial aids in the inquiry, but at last the intention of the parties as gathered from the instrument as a whole must prevail."
Based on the authorities herein cited as being applicable to the undisputed facts, I respectfully submit that the judgment of the trial court should have been reversed and rendered for appellants.