dissenting.
I must respectfully dissent from the opinion of my brothers. I agree with the majority’s statement of the facts. I also agree that the specific question of what is a mobile home when considered in relation to restrictive covenants has not been decided in this state and that there is a split of authority on this issue nationwide. Beyond this point we part company.
I quote the particular restriction which plaintiffs seek to enforce:
“RESTRICTIONS: Restricted against commercial use. No trailers or mobile homes permitted. Residences shall be not less than 1,200 square feet. Restricted against anything that would be a nuisance. Land can be used for farming, including farm buildings.”
We must not lose sight of the fact that we are dealing with a restriction or restrictive covenant on real estate. Such restrictions are to be enforced according to the express intent of the parties, but being in derrogation of the right of unrestricted use of property will be strictly construed and will not be extended by implication to anything not clearly and expressly prohibited by their plain terms. Turnley v. Garfinkel, 211 Tenn. 125, 362 S.W.2d 921 (1962).
In Parks v. Richardson, 567 S.W.2d 465 (Tenn.App.1977), Judge Drowota, now Justice Drowota of our Supreme Court, succinctly set out the controlling law:
Plaintiffs correctly point to a couple of well established rules of law and construction which dictate the approach that must be taken in this case. The first is that a restrictive covenant will be given a fair and reasonable meaning according to the intent of the parties, which may be determined with reference both to the language of the covenant and to the circumstances surrounding its making. White v. Gulf Refining Co., 156 Tenn. [(3 Smith)] 474, 2 S.W.2d 414 (1928); Waller v. Thomas, 545 S.W.2d 745 (Tenn.App.1976); Hamilton v. Broyles, 57 Tenn.App. 116, 415 S.W.2d 352 (1966). The second is that a restrictive covenant, being in derogation of the free use and enjoyment of property, will be strictly construed against the restriction and in favor of the reasonable use of the property, so that only uses clearly prohibited will be held precluded by such a covenant. Shea v. Sargent, 499 S.W.2d 871 (Tenn.1973); Lowe v. Wilson, 194 Tenn. 267, 250 S.W.2d 366 (1952). Thus, any ambiguity in the terms of the covenant or intent of the parties will be resolved against the restriction. Shea v. Sargent, supra; Waller v. Thomas, supra. We point out in particular that this is the applicable rule of construction, rather than the rule that ambiguous contract provisions are construed against the party who wrote them, a rule that defendants contend should be applied here. The latter is a valid rule of construction applied in contract cases in Tennessee. See e.g., Hanover Insurance Co. v. Haney, 221 Tenn. 148, 425 S.W.2d 590 (1968) (insurance policy). In cases involving covenants restricting the use of real property, however, the rule of strict construction against the restriction is well established as the one to be applied.
Id. at 467-68.
Judge Drowota noted that no clear evidence was introduced regarding the specif*69ic meaning intended by the parties in the use of the words of the restriction and that the words themselves are the primary evidence of meaning.
In the case at bar, like Parks, the record reveals no evidence of the specific meaning intended by the use of the words “mobile home.” Does the use of the words “mobile home” denote mobility in getting the home to the particular parcel of real estate or does it mean to remain instantly mobile while resting on the real estate? The particular structure involved came to the real estate in two pieces, and certainly each piece was mobile enough to allow it to arrive at its destination. However, it is clear that each piece constituted only one-half a home or house. Furthermore, the axle and wheels, the means by which these two separate half houses were brought to the real estate, were not purchased as a part of the structures and were merely used to move the structures to the lot. It seems to me that the majority would have difficulty drawing the line of when something would be mobile or not mobile. Is half a house mobile, but one fourth of a house is mobile? Is one fourth of a house mobile and one eighth of a house immobile? Are the trusses mobile or immobile if they are moved in one piece to the lot? In any event, the facts of the instant case establish without controversy that the particular structure we are dealing with in this case was not one single self contained structure, but came to the lot in separate pieces. Once it arrived it was placed on a foundation, and all the devices which allowed the structure to be moved were detached and returned to the manufacturer. These devices amounted to nothing more than a platform upon which to move the structure. Would the majority have decided differently had the structure of the house been delivered upon a flat bed truck? As it existed on the lot the structure was no different from any other house. Perhaps it might be somewhat easier to arrange for its removal from the lot, but that should not be the criteria for establishing what is a mobile home within the meaning of the restrictive covenant. In my opinion the plain meaning of the words “mobile home” requires us to say that a mobile home is one that is mobile and not one that can be made mobile. If the restriction in question is construed to mean one that can be made mobile, then almost any residential structure can qualify as a mobile home by using jacks and attaching axles and wheels in the same way the home in this case can be moved. Strictly construing the restriction as written we should hold that the structure involved in the case before us is not a “mobile home” within the meaning of the restriction.
I am not unmindful that the majority opinion has followed what is probably considered the majority view in this country. However, it should be noted that the cases cited in the majority opinion do not mention the rule of strict construction of real estate restriction. I am not inclined to say that the majority rule should control our decision in a case involving restrictive covenants on Tennessee real estate. Our Supreme Court noted in Shea v. Sargent, 499 S.W.2d 871 (Tenn.1973), that although some states do not strictly construe restrictive covenants because they are said to protect the land owner and the public rather than restrict the use of the land, the law in Tennessee is otherwise. The court said:
The plaintiff cites cases, notably Wallace v. St. Clair, 147 W.Va. 377, 127 S.E.2d 742 (1962), which represent the so-called “modern trend.” Under these opinions restrictive covenants are not strictly construed because they are said to protect the landowner and the public rather than restrict the use of the land. The law in Tennessee, however, is otherwise. The general rule in our courts is that restrictive covenants, those which restrict the use of land, must be strictly construed. This Court has recognized the protective aspects of such covenants, but has concluded that they are restrictive in nature.
Id. at 872-873.
In this case, the restriction is “No trailers or mobile homes permitted.” Under our law we are required to give the words used their plain, usual and ordinary meaning in strictly construing a restriction on the free use of the property. The struc*70ture in the present case is resting on a foundation and in order for it to be moved must be cut in half and have axles and wheels installed. I find it difficult, if not impossible, to hold that such a structure under the restriction in question is a mobile home. This is not to say, of course, that a restriction could not be written to cover a structure such as we have in this case.
Finally, I am compelled to take issue with the majority’s treatment of Associates Capital Corporation v. Cookville Production Credit Ass’n., 569 S.W.2d 474 (Tenn.App.1978). In Associates Capital the issue before the court is stated as “whether a 12' x 65' ‘mobile home’ that has had its wheels removed and has been affixed to realty is subject to the certificate of title provisions for motor vehicles under chapters 1 and 3 of Title 59 of Tennessee Code Annotated.” Id. at 475.
In the case before us, the majority opinion states: “The determinative issue in this case is whether the chancellor was in error in finding that the defendants’ structure was a ‘mobile home’ as defined in T.C.A. § 55-1-105.” In my view the issue as stated by the majority and the issue in Associates Capital are essentially the same although the majority opinion later states, “Clearly, the issue in Associates Capital is not the same issue now before this Court.” The issue of whether the structure is a mobile home within the meaning of T.C.A. § 55-1-105 is not the determinative issue. If it were the determinative issue, then on that basis alone the holding of Associates Capital would require a reversal of the chancellor’s ruling since the court in Associates Capital found that a 12' X 65' single unit set on a foundation was not a mobile home within the meaning of the statute. The holding of Associates Capital is limited to a definition of “mobile home” under the statutes involving vehicle title certificates and registration. Judge Drowota made it quite clear that a definition under the statute may have no application to a controversy such as involved in the instant case when he said:
The definition of a “mobile home” for legal purposes will vary according to the circumstances, that is, not only according to the nature and surroundings of the vehicle or building itself but also according to the purpose and context of the legal definition. For example, since real estate tax law and zoning law have different purposes and rationales behind them, the group of items included as “mobile homes” under the definition of one might differ from those included under the other.
Id. at 479.
Based on the uncontroverted facts in this record I would hold that the defendants’ house is not a “mobile home” within the meaning of the restriction and would reverse the judgment of the trial court.