(dissenting).
Aluminum Company of America brought this suit seeking a mandatory injunction against a property owner (Albert Wayne Kohutek). Based on a jury verdict, the trial court rendered judgment denying the injunctive relief. The appellant (ALCOA) contends here that there was no evidence to uphold the judgment; and that this Court should reverse the trial court judgment and enter a permanent injunction as a matter of law. I cannot agree. I therefore respectfully dissent.
There are a number of reasons why the judgment of the trial court should be affirmed. But basically they are that:
1. Alcoa failed to plead and prove conclusively an uncontroverted case authorizing this Court as a matter of law to render a mandatory injunction based on a single restrictive covenant contained in a subsequent grantee’s deed.
2. Based upon the familiar rules that guide the appellate courts, there was ample evidence to uphold the jury’s verdict on the special issues which denied the relief sought by Alcoa.
Alcoa’s petition stated in substance, that a certain condition in Kohutek’s deed was included in order that Alcoa could exercise some control over the future development of the real estate it conveyed. Its petition stated in part that its control was retained in order to protect Alcoa and all purchasers of Alcoa property and to prevent undesirable uses being made of the land conveyed by the plaintiff. Alcoa further plead that it would suffer irreparable damages in that the value of the real estate in the vicinity of Kohutek’s land would diminish unless he was enjoined. The petition further stated that it had no adequate remedy at law unless an injunction would be granted and therefore asked that such an injunction issue, commanding Kohutek from parking or in otherwise using or occupying his mobile home on the above property, and praying that Kohutek be ordered to immediately remove the trailer house from the above described property.
The tract of land in question was free of all restrictions, conditions and covenants except the condition contained in a deed from Alcoa to appellee’s grantor. The single restriction stated that for a ten-year period (beginning May 3, 1962) “ * * * no building or other improvement shall be placed, constructed, or built upon the land hereby conveyed unless plans and specifications for the same have been submitted to Grantor (Alcoa) and Grantor has given its written approval of the same; * * * ” The deed provided that this condition was to be a covenant running with the land, and was to bind the grantee, his heirs and assigns.
The law relative to the validity, construction and effect of a restrictive covenant in a deed requiring the consent of a third party to construct on a lot, has not been before the Texas appellate courts. There are some guidelines from the Texas decisions and from the out of state decisions that seem appropriate. Courts generally have manifested disfavor with covenants that restrict the use of property. As a general rule, in construing such covenants, all doubts are resolved in favor of the free use of property and against restrictions. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1958) and authorities cited therein. In actions to enforce a restriction, the restrictive language in the deed must be construed in the light of surrounding circumstances and conditions. There is, of course, the presumption with regard to conveyances, that they import the greatest possible estate and the least restriction on the use of the property granted, compatible with the language in the deed. Although covenants restricting the free use of property are not favored, they will be enforced, where the restrictions are con*801fined to a lawful purpose and are within reasonable bounds. The language employed in expressing them must be clear. 16 Tex.Jur.2d, Sec. 129, p. 36 and Sec. 110, p. 2; Chandler v. Darwin, 281 S.W.2d 363 (Tex.Civ.App.-Dallas 1955). Most all of the cases hold, that a party seeking to enforce a restrictive covenant has the burden of proving that a general building plan or scheme was intended, and that the restrictions were imposed for the benefit of the grantor and other property owners. Massengill v. Jones, 308 S.W.2d 535 (Tex.Civ. App.-Texarkana 1957, n. r. e.); see 26 C.J.S. Deeds § 171, p. 1176.
There were no factual jury findings favorable to Alcoa. All of the defensive findings were favorable to the defendant, Kohutek. The only finding Alcoa contends is favorable to it, is that the violation of the restrictive covenant was a “distinct and substantial breach" of the restriction. This I believe is a question of law as the cases seem to determine. In any event it is not decisive of this case.
Alcoa argues that the rights of a developer of a subdivision to enforce restrictive covenants requiring his consent to build or make improvements, has not been generally questioned. Citing cases from California, Maryland, Massachusetts and Pennsylvania. It concedes, however, that in the exercise of a right of refusal to approve the plans or improvements, such action must be based upon a reasonable determination made in good faith, and the request must not be capriciously or arbitrarily refused. Concluding its discussion of the cases, appellant argues that the restrictive covenant in question requiring Alcoa’s written consent, is valid, and will be enforced if Alcoa’s rights thereunder are reasonably exercised.
Conceding for the sake of argument, that Alcoa had proved reasonableness and its good faith determination; that it did not act capriciously or refuse arbitrarily, still I am not convinced that these tests would be applicable to this particular single restrictive covenant in Texas or elsewhere. A brief study of the out of state authorities cited by the appellant and others reveal, that before such restriction is enforceable, there are certain basic requirements that must be apparent before one would be entitled to relief in a court of equity.
In the case of Hannula v. Hacienda Homes, 34 Cal.2d 442, 211 P.2d 302 (1949), annotated in 19 A.L.R.2d at 1268, the California Supreme Court held in a declaratory action suit, that a party had authority (under a similar restriction) to make a determination of the plans and specifications as well as the building site, so long as the exercise of such authority was reasonable and made in good faith. The question of reasonableness (which was stipulated to), and whether the party acted arbitrarily or capriciously was left open and was not determined by the appellate court. However, in deciding the case, the Court took notice that there were numerous restrictions and restrictive covenants covering the subject property and that these restrictions were stated to be for the benefit of all owners of property in the subdivision.
A Maryland case (Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430 (1957), recognized the validity of a similar restriction and held that the basis for refusal to approval must bear some relation to the general plan of overall development. (There were numerous covenants and conditions and restrictions contained in the instrument affecting the subject property). The Court said that “There can be no question as to the intention of the parties in the case at bar. The language used in the covenants, partly quoted above, makes plain the desire to regulate the construction of the dwellings in such a manner as to create an attractive and desirable neighborhood. * * * ”
Alcoa cites the case of Parsons v. Duryea, 261 Mass. 314, 158 N.E. 761 (1927). The Massachusetts Court in considering a restriction similar to the one before us concluded from the evidence that the restrictions were connected with a general scheme *802for the development of a tract of land and the plaintiffs were acting in good faith.
The Pennsylvania case of Hoffman v. Balka, 175 Pa.Super. 344, 104 A.2d 188 (1954) recognizes that building restrictions are not favored and must be strictly construed; that they cannot be enlarged or extended by implication; and that all doubts should be resolved against the restriction and in favor of the free and unrestricted use of the property owners. There were numerous restrictions and covenants covering the subject property, one of which required the approval of the building by a building committee. The Court outlined in detail all of the standards that were set up in the restrictions themselves to guide the building committee in its determination and held that from the facts, the committee’s action was not unreasonable.
In each of the cases cited by the appellant a definite scheme of development was proved by the restrictions affecting the subject property that benefitted all of the owners of the property in the subdivision, and in each case a definite set of standards was evident from the restrictions themselves which covered the property in question.
The Ohio Supreme Court considered a case much more analogous to the situation before us than any of the cases cited by the appellant. Exchange Realty Company v. Bird, 16 Ohio Law Abst. 391 at 394. There the Ohio Supreme Court said that:
“While such a restrictive covenant in a deed requiring the submission to and approval by the grantor of all plans for the erection of a house is held to be a valid and enforceable covenant * * * it will be noted that such a covenant is always used in connection with some general plan or scheme or some other designated or stated restriction within which such approval may operate or that the covenant regulates the scope of the approval * * * ft
Concluding, the Court said:
“We find no decision or text to the effect that a covenant requiring the submission to and approval of plans by the grantor, standing alone, without any other restriction, is enforceable.”
In Kline v. Colbert, 91 N.E.2d 299 (Ohio Com.Pl.) the Ohio intermediate appellate court again rejected a similar restriction on the basis that there were no standards to be applied. That Court, quoting further from the Exchange Realty Company case, supra, said:
“If this language were the only restriction in the deed, it surely would be entirely too vague and indefinite to be enforceable in a court of equity, and would be totally ineffective, as standing alone it would be devoid of any general plan or scheme, would be unlimited in its scope, and would leave the purchaser subject to the mere whim of the seller and permit the seller to require a structure of any kind or value to be erected on any lot, and could result in a mere shack being built on one lot, and a palatial dwelling on an adjoining lot; or the seller might require any other kind of building, business block or factory to be built on any particular lot. The purchaser would thus have nothing of value; and such restrictions would therefore seem to be against public policy and be void.” (See 19 A.L.R.2d 1272 for a discussion of this case).
Other states have considered this problem and all require guidelines so that such a restrictive covenant affords protection as well as due process. See Rhue v. Cheyenne Homes, Inc., 449 P.2d 361 (Sup.Ct. Colorado, 1969); Voight v. Harbour Heights Improvement Association, 218 So.2d 803 (Dist.Ct. of App., Florida, 1969); Community Builders, Inc. v. Scarborough, 149 So.2d 141 (Court of App., Louisiana 1962); Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J.Super. 111, 170 A.2d 52 (1961); and La Vielle v. Seay, 412 S.W.2d 587 (Ct. of App. Kentucky, 1966).
*803In order to reverse and render the trial court’s judgment based upon the jury verdict, there must be a complete absence of evidence of the vital defensive facts and in addition the evidence must establish conclusively that Alcoa is entitled to recover as a matter of law. Therefore, all of the facts must be considered in the light of the familiar rules in such cases.
Albert W. Kohutek and his wife worked in the Calhoun County Hospital and lived in the city of Port Lavaca in a rented house. On or about February 2, 1969, Kohutek’s landlord told him that he would have to move by February 28, so he and his wife started looking for other rent property. By the middle of the month when he was unable to find a suitable house to accommodate his wife and six children, he inquired about the prospects of obtaining some acreage in the Lynnhaven Subdivision as a mobile home location. A friend of his had bought some acreage property in this subdivision and told him he thought the acreage next to him was for sale. On February 16 Kohutek and his wife shopped for a mobile home in San Antonio, Texas, and found one that they liked. After making preliminary arrangements for the purchasing of this home (such as credit arrangements, down payment requirements, time of delivery etc.), they came back to Port Lavaca and contacted a Mr. Linville who owned the acreage in the Lynnhaven Subdivision. Lin-ville offered to sell his property to Kohuket for $5500.00. A day or two later Kohutek made inquiry with the City of Port Lavaca relative to zoning regulations, utility connections and the length of time it would take to obtain sewer and water taps on the Linville tract for a mobile home. The City Manager told Kohutek that there were no problems as far as the City was concerned but that he thought there might be some restrictions on this property as far as Alcoa was concerned. They had developed the property and had certain restrictions on the residential section of the Lynnhaven Subdivision.
Kohutek called George A. Rhoades at the Alcoa plant. This conversation was very important, as the jury’s answers to some of the special issues were based in part on this event.
In order to fully understand the basis for the jury’s verdict, some background evidence and certain favorable evidence must be considered. When a no evidence point is raised, the appellate court must follow the rule of reviewing the evidence in its most favorable light in supporting the findings of the vital facts and the Court must consider only the evidence and the inferences which support the findings and reject the evidence and inferences which are contrary to the findings. Robert W. Calvert, “No Evidence” and “Insufficient Evidence”, 38 Texas Law Review 359; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The Lynnhaven Subdivision was divided into acreage tracts and 250 residential lots. The residential lots were subject to a lengthy detailed set of deed restrictions. It is important to the decision of this case to know how extensive these restrictions were in the residential section as it shows a definite plan or scheme, and the building committee was given definite guidelines to assist it in making its decisions. There were no restrictions filed on the balance of the subdivision which included the acreage tracts when the subdivision was platted. Therefore, there was no plan or scheme or any guidelines to follow. Without unduly lengthening this opinion a résumé of the restrictions was as follows. In this residential section, the restrictions required certain defined building set back lines. Each dwelling was required to contain a minimum square footage of floor space. The lots were restricted against offensive trades, billboards and provided that “No trailer, basement, fence, shack, garage, barn or other outbuilding erected on any lot shall at any time be used as a residence, temporarily or permanently, nor shall any structure of a temporary character be used *804as a residence.” It also provided that “No single family dwelling erected on any lot shall cost less than $3500.00.” The restrictions set up definite guidelines for utility easements, restricted the keeping of livestock, poultry or swine; prevented the keeping of trash, garbage, ashes or other refuse from being thrown on any lots; set up certain requirements as to fences, hedges and walls and required the approval in writing by a named building committee “ * * * for conformity and harmony of external design with existing structures in the sub-division, and the location of the buildings with respect to the property and building lines”; and finally provided that the restrictions should last for twenty-five years (i. e. until 1975).
On one side of the subdivision backing up to a bayou and extending on out to the State Highway were some acreage tracts. They were approximately one to five acres in size. The above restrictions did not apply to these acreage tracts. However, as each of the acreage tracts were sold, Alcoa placed a single condition on each tract at the time it was conveyed, stating that for a ten-year period “no building or other improvement shall be placed, constructed or built upon the land hereby conveyed until plans and specifications for the same have been submitted to grantor (Alcoa) and grantor has given its written approval of the same.”
The uses of these acreage tracts were many and varied. Originally, one was to be for recreational purposes, although the testimony was that this fizzled out and no use of it as such was made; on one tract was located a sewage disposal plant. Others had been sold to various churches. On the corner of one of the tracts, a map of the subdivision shows that Gulf Oil Company owned a portion of one tract. On still another was a boat house. Some of the tracts were vacant and were still owned by Alcoa and were not subject to any restrictions or conditions whatsoever.
George A. Rhoades was superintendent of the real estate for the Aluminum Company of America and agent for Alcoa as its petition indicates. The evidence was that Rhoades had been an employee of Alcoa for twenty six years and had lived in Port Lavaca in the Lynnhaven Subdivision and had been connected with this subdivision since its inception in 1949. He was in charge of the construction of the subdivision in its entirety and had served as chairman of the building committee. Kohutek and Rhoades knew each other and were on a first name calling basis. Kohutek’s conversation with Rhoades was related a number of times by both parties throughout the trial, both on direct examination and repeated on cross-examination. Each version was not necessarily complete and all versions varied some.
It was undisputed that Kohutek called Rhoades to inquire about the possible restrictions on the Linville property (acreage tracts), which he was contemplating buying. With this background in mind, the favorable version of the conversation which the jury was at liberty to believe, was as follows :
Kohutek told Rhoades that he was contemplating buying the Linville acreage for the purpose of putting a mobile home on it. That he was operating under a definite time limit because he was having to move. According to the evidence, Rhoades replied: “Wayne, that property is not part of the Lynnhaven Subdivision. This line runs, if I am not mistaken, down the center of the street. As far as I know there are no restrictions on mobile homes.” Rhoades did tell Kohutek that he thought that there was some condition in the deed from Alcoa to Linville (the present owner of the tract in question) so he got a copy of the deed and read the condition to Kohutek (i. e. requiring Alcoa’s approval of building plans). During the conversation Rhoades told Kohutek that there was nothing in the deed restricting mobile homes and that this *805(condition as to Alcoa’s approval) was a matter of formality. Rhoades then told Kohutek that when he closed the deal with Linville (i. e. purchase of the Linville tract) “get in touch with me”. In this connection Rhoades told Kohutek to write Alcoa a letter as to what he intended to do and he told Kohutek what to put in the letter. Rhoades then instructed Kohutek (after he had closed the deal with Linville) to bring the letter to his office and if he was not in to leave it on his desk. He would expedite it!
After this conversation with Rhoades, Kohutek started to make all the arrangements to buy the land, to purchase the trailer, to secure utility connections, and even started selling his furniture from his rented house, as the mobile home was furnished throughout.
The evidence was that Kohutek called Linville and asked him if he would accept a $1,000.00 down payment and monthly payments on the balance for the acreage tract. Linville agreed to this proposal and they made arrangements to meet in his attorney’s office on Saturday, February 22. Kohutek called the mobile home agency in San Antonio and bought a new mobile home for $7400.00. He mailed them his check for $800.00, being the down payment and made arrangements for the mobile home to be delivered on the lot on Tuesday, February 25. He went to the City and ordered the water and sewer taps and arranged for all utility connections at a cost of $160.00. On Monday, February 24, following the closing of the deal with Linville as to the purchase of the tract, he hand-delivered the letter to Rhoades which stated that he was requesting permission to place a mobile home on the Linville tract; that the mobile home would arrive on Tuesday, February 25 and would be completely set on a foundation by the movers. On Tuesday the mobile home was delivered, set up and the utility connections were made. On Wednesday Kohutek heard some rumors at the hospital where he worked, that Alcoa was dissatisfied with him having the mobile home at the property. So he called Rhoades. Rhoades told Kohutek that he was not supposed to move the trailer on the property until he had obtained Alcoa’s permission. Kohutek said: “Well, now, wait a minute. The mobile home, we talked about this and I told you the mobile home was going to be there on the morning of the 25th.” With this Rhoades calmed down and told him that he had not had a chance to meet with the Alcoa people relative to his letter. However, that same day (Wednesday, February 26) Rhoades wrote Kohutek telling him that Alcoa did not approve of his proposal to park the mobile home on the land. Kohutek refused to move the mobile home contending that he had already had permission from Rhoades. Whereupon, Alcoa brought suit for .in-junctive relief to force Kohutek to move the mobile home.
The jury found that Alcoa acted arbitrarily and capriciously in refusing to give Kohutek consent to maintain a trailer house as a residence on the property in question. They further found issues of estoppel against Alcoa. I believe that the foregoing evidence substantiates the jury’s verdict.
There was other evidence that Alcoa acted arbitrarily and capriciously. At one time they offered to waive the plans and specifications requirement on the trailer home if Kohutek would start constructing a residence on the subject property within ninety days, although no other residence existed on any of the acreage tracts and there was no evidence that Alcoa insisted on such requirement from any other property owner.
There was evidence that a boat barn was built on another tract with Alcoa’s knowledge, although there were no plans and specifications submitted and no consent given. Alcoa took no action as to this property owner and only asked him to submit plans and specifications for the boat barn after the filing of this suit. The owner then drew up his own plans which *806varied materially from the actual barn that was constructed.
It was conceded that a junk yard could be established on any of the acreage tracts including the subject property as there would be no necessity for building plans or specifications that would be subject to Alcoa’s approval.
The evidence clearly shows that Alcoa could convey some of these acreage tracts that it still owned without any restrictions whatsoever for commercial or any other use.
A sewage disposal plant with Alcoa’s consent was established on one of the tracts of land. Alcoa admitted that it did not require consent for fences to be erected on any of the acreage tracts as it did not consider them to be “improvements”.
A reasonable construction of the subject covenant would be that the parties never intended to restrict a mobile home or house trailer from the acreage tract. In the same subdivision on all of the 250 lots, such restriction (against home trailers) was placed in the deeds by Alcoa. Yet it made no such definite restriction in Kohutek’s deed. In addition to this, although a building or other improvement might, in certain circumstances, include a mobile home, the subject restriction clearly had application to such a building that would normally require “plans and specifications.” No such plans and specifications are available to mobile homes and it would be a constrained construction of this restriction to so interpret it.
The testimony is clear from the evidence that Alcoa did not want a mobile home or house trailer at all, irrespective of any plans or specifications. The restrictions as to residential lots had less square footage requirements than Kohutek’s mobile home. The cost of construction requirement on houses in the residential area was less than half as much as the cost of Kohutek’s mobile home. The residential lot guideline restrictions were therefore not material to Alcoa’s refusal.
One witness testified that he did not believe that the placing of a trailer house or mobile home on the property would cause any damage to his property or others. Although we are not required to consider Alcoa’s expert witness on damages on a no evidence point, he testified in any respect that the property in the subdivision might depreciate 5% but it would take one, two or three years before the depreciation would be effective. It was undisputed that the subject restriction was of short duration as it had less than three years left to be effective. The restriction in question would run out within the time that Alcoa’s witness said that damage might occur. The jury did not find any damages or irreparable harm to Alcoa or to any other property owner.
The right to mandatory injunctive relief is not given without a substantial injury. The courts are reluctant to issue mandatory injunctions and will do so only with great caution in order to prevent serious damage. 31. Tex.Jur. § 32, Injunctions, p. 83, et seq. There is an exception to this general rule that permits injunctive relief without regard to damages caused by the breach. Whether such injunction shall issue, depends upon the equities between the parties; whether there has been a breach of a positive or negative legal right; consideration of the time duration of the restrictive covenant; and many others. I do not believe that Alcoa has brought itself within this exception. See 43 C.J.S. Injunctions § 87b(4) (c), p. 585, and following.
The testimony was clear that Kohutek thought he had Rhoades’ consent. No other evidence could be as strong as was the evidence of Kohutek’s acts: in buying the property; in purchasing the trailer house; in expending funds for the utilities; and finally, in selling his household furnishings from his rented house.
*807Alcoa knew at least one day before the trailer home was placed upon the property that Kohutek was going to do so. It knew several days before that of Kohutek’s intended plans. It permitted him to incur expenses, to enter into obligations, and to sell his household furnishings without lifting a finger to stop him. By its passive acquiescence to Kohutek’s move, it would be contrary to good conscience now, to enforce such a doubtful right as this restrictive covenant in a court of equity. Diligence has always been an essential prerequisite to equitable relief of the nature sought by the appellant Alcoa.
I would affirm the judgment of the trial court.