finding that “trailer” is to be understood in its usual meaning regardless of whether it is referred to or described as “house trailer” or “mobile home”
How later courts described this case
- finding that “trailer” is to be understood in its usual meaning regardless of whether it is referred to or described as “house trailer” or “mobile home”
- in the absence of findings of fact relating to a decision made by the trial court, all factual findings that would support the ruling are presumed
- when “[n]o findings of fact or conclusions of law were requested of or filed by the trial court . . . all questions of fact will be presumed and found in support of the judgment.”
- restrictive covenant prohibition encompassing mobile homes
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Cherne Industries, Inc. v. Magallanes, 32 Tex. Sup. Ct. J. 179 (1989)
559 S.W.2d 353, 358 (Tex. 1977), overruled on other grounds, Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768
Distinguished
Distinguished by Wilcox v. Wilmoth, 1986 Tex. App. LEXIS 9235 (1986)
supra at 357, upon which the trial judge obviously relied in coming to the conclusion which he reached [that a “mobile home was a trailer”]; however, Lassiter is distinguishable from the case before us on two significant points.
The opinion
SAM D. JOHNSON, Justice,
dissenting.
This dissent is respectfully submitted.
The restrictive covenant being construed provides:
“No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition.”
In the instant case there is no contention that there has been a violation of the restriction against temporary quarters, nor are there allegations involving tents, basements or garages. The only contention presented is that the “mobile home” is a “trailer” within the purview of the restrictive covenant.
The majority opinion holds that a mobile home is a trailer. The majority bases its reasoning on those cases which deal with whether a mobile home is a permanent or a temporary structure that complies with restrictive covenants. By such an analysis, the majority has failed to apply the basic principles governing construction of restrictive covenants. Construction of a restrictive covenant, as with any other contract, is governed by the intent of the parties at the time the covenant is made and will not be extended by implication. Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Com.App.1928, holding approved); Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452 , 270 S.W. 1014 (1925, opinion adopted). This court has made it quite clear that where the language of a restrictive covenant is ambiguous the covenant shall be strictly construed, favoring the free use of property and the best interest of the public. Baker v. Henderson, 137 Tex. 266 , 153 S.W.2d 465 (1941). Under application of these principles, the issue here presented is not whether the mobile home is a temporary or a permanent structure, but whether the mobile home in its present state of development, sophistication, and utilization was within the intention of the parties to the restrictive covenant, which did no more than prohibit trailers.
Elmer Bliss and his wife have allegedly violated a restrictive covenant created by a dedication of the Memorial Park Addition to the City of Kermit, Texas, executed October 18, 1948. In 1948 the term “mobile home,” as well as the structure with its residential amenities, did not exist. 1 The *360 mobile home is a structure physically, functionally, and socially distinct from the trailer of the 1940’s as well as from the trailer of the 1970’s.
TRAILERS
The prototype of the trailer had its advent in the mid-1920’s. The 1920 trailer was a small, recreational vehicle which was easily transportable and simple in design; this vehicle was no wider than eight feet and varied in length from ten to twelve feet. By the 1940’s the trailer was more widely used; these trailers remained relatively compact, retaining the eight-foot width and slightly extending its overall length. The trailers of this era provided makeshift accommodations primarily designed for ease of movement and travel. These trailers were in no way designed to be permanently located at one campsite; therefore, they were not provided with utility connections or plumbing facilities. A negative stigma became associated with trailers during this period due to the transient, gypsy image that was the stereotype of the poorly maintained communal campsites. These gathering areas created special health and sanitation problems which predictably resulted from the densely populated campsites with inadequate water supply and waste disposal. For the most part, trailer users tended to be migrant and transitory workers from lower socio-eco-nomic groups. Communities regarded such transients as undesirables who were not interested in the well-being of the community; therefore, many municipalities adopted a “thirty-day rule” restricting the period in which a trailer could park within the community to no longer than thirty days. Consequently, as a result of social pressure, as well as structure and design, the trailer of the 1940’s strictly provided highly mobile and temporary accommodations. In the 1940 census the United States Bureau of Census grouped trailers along with railroad cars, tents, and shacks rather than with single-unit family housing. 2
The modern trailer has developed substantially in design and social acceptance. Trailers now encompass a large category of vehicles, including hauling trailers, camping trailers, tent-trailers, and other recreational vehicles. However, each of these vehicles retains the characteristics of the 1940 trailer. Mobility remains the central feature that controls the trailer’s design and utilization. The trailers of the 1970’s continue to be designed in size and weight so that they can be easily drawn by an average or ordinary automobile without requiring special trucks or highway permits. These trailers are not designed for affixation to the ground or permanent connection to utilities or sewerage. They are widely utilized for recreation, travel, and camping. This court noted the seasonal use of trailers in County of Cameron v. Wilson, 160 Tex. 25 , 326 S.W.2d 162, 167 (1959), wherein the court allowed the issuance of revenue bonds to fund the addition of trailer park facilities to an existing recreational park. The court noted that the trailer park would not create a residential area within the park but would constitute “ . . .a place where parking space, sanitary facilities and electricity are supplied to those who make use of house trailers while traveling about the country for recreational or business purposes.” [Emphasis added.] Therefore, in terms of function, mobility, size, and costs the trailer has attained a particular and distinct status.
MOBILE HOMES
Since its advent in 1954 and 1955, the mobile home has evolved in a manner significantly different from trailers. The term “mobile home” was first utilized by *361 Elmer Frey in labeling the ten-foot wide structure which provided the additional area necessary to accommodate residential facilities and amenities. By the 1960’s and the 1970’s, mobile homes were available in twelve-foot widths, fourteen-foot widths, and expandable units. The lengths of these homes averaged sixty to sixty-four feet with some units exceeding eighty feet. In area the mobile home equals small single-unit dwellings with 700 to 1,400 square feet.
From the outset these mobile homes were designed for permanent, residential use. The interiors are divided into various rooms, including living rooms, family rooms, dining rooms, kitchens, multiple bedrooms, and one or more bathrooms. Ample storage space is provided by utility rooms, closets, cupboards, and pantries. The mobile home is equipped with electrical wiring, plumbing, ventilators, gas or electric cooking systems, refrigerators, hot water heaters, and totally equipped kitchens. Just as with other forms of comfortable housing, various options are available, which include garbage disposals, dishwashers, washers and dryers, central heating and air conditioning, sunken baths and saunas. In addition, the mobile home is fully furnished with carpeting, draperies, and free-standing furniture. These residential amenities are available at prices comparable to the cost of moderate income homes, with costs ranging from $5,000 to prices which exceed those of other forms of permanent housing. In the 1970 census the United States Bureau of Census recognized mobile homes as a significant element in the housing supply, comprising over thirty percent of the available single-family housing. 3
The major distinction between the mobile home and other forms of permanent housing is that the mobile home is at least initially equipped with an undercarriage and wheels. These allow the mobile homes to be moved from the dealer to the lot where they will be permanently located. Once transported to the homesite, the mobile home is designed to be permanently affixed to the ground and connected, as a traditional home, to all utilities with the appropriate meters. Movement of the mobile home may not be accomplished with an ordinary automobile. Movement of the mobile home requires special transport permits, a powerful hauling truck, and is relatively expensive. Therefore, the mobile home is mobile only in a very limited sense. Statistics compiled by the Housing Division of the Texas Department of Community Affairs reflect that the majority of mobile homes are moved only once, that being from the dealer to its present, permanent location. 4
The mobile home and the trailer are distinct and quite different structures. In terms of size, cost, and utilization, the mobile home constitutes a vital form of permanent housing. The trailer, on the other hand, constitutes a popular travel or recreational vehicle. Both the United States Congress and the Texas Legislature have recognized the distinct status of the mobile home. In the National Mobile Homes Construction and Safety Standards Act of 1974, 42 U.S.C. § 5401 , et seq., Congress determined that “ . . . it is necessary to establish Federal construction and safety standards for mobile homes and to authorize mobile home safety research and development.” 42 U.S.C. § 5401 . In so doing, Congress defined “mobile home” as:
“ . . .a structure, transportable in one or more sections, which is eight body feet or more in width and is thirty-two body feet or more in length, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein; . . . ” 42 U.S.C. § 5402 (6).
Similarly, in the Mobile Homes Standards Act, Texas Revised Civil Statutes Annotated, Article 5221f, the Texas Legislature stated:
*362 “It is the legislature’s intent to improve the general welfare and safety of the citizens of this state. The legislature finds that mobile homes have become a 'primary housing resource of many of the citizens of the state; that a growing awareness exists that many consumers are injured by unprincipled and dishonest members of the mobile home industry, that current warranties are deficient, that existing means of remedying these injustices are inadequate and do not provide a viable means for protecting the consumer, and that it is the responsibility of the state to provide for the protection of its citizens through the imposition of certain regulations on the mobile home industry. In recognition of these findings, the legislature deems it necessary to expand various regulatory powers to deal with these problems. The legislature finds this to be the most economical and efficient means of dealing with this problem and serving the public interest. Accordingly, this Act shall be liberally construed and applied to promote its underlying policies and purposes.” [Emphasis added.]
In establishing these standards the Texas Legislature utilized the identical definition of “mobile home” as enunciated in the National Mobile Homes Construction and Safety Standards Act, supra. With the legislative bodies affording unique status to mobile homes, the courts should and must recognize the distinct nature of mobile homes and not allow covenants designed to control a use of one kind to apply to a use of quite a different character.
Therefore, as the restrictive covenant in the instant case was imposed in 1948, before the advent of the mobile home, such homes could not have been and were not within the contemplation of the parties to the restrictive covenant. Furthermore, as the average housing in Memorial Park is valued at $8,000 or $8,500, there can be no contention that the mobile home does not compare in size, cost, and quality to the average homes in the surrounding subdivision. This court may not enlarge by implication the intentions of the parties; the restrictive covenant should be limited precisely to prohibit what is encompassed by its language, to wit, trailers.
Even should the proper inquiry be whether the mobile home is a temporary or a permanent structure, as the majority opinion implies, the mobile home should not be restricted by the covenant. The court of civil appeals in considering the instant case held that Hussey v. Ray, 462 S.W.2d 45, at 45 (Tex.Civ.App.—Tyler 1970, no writ), was persuasive, as the court construed a covenant with similar wording and intent. The majority of this court disagrees with the court of civil appeals and holds that the covenant construed in Hussey is distinguishable. The restriction in Hussey stated:
“No trailer, tent, shack, stable or barn shall be placed, erected or be permitted to remain on any lot, nor shall any structure of a temporary character be used at any time as a residence.”
This writer does not recognize this language as significantly distinguishable from the restriction in the instant case, which reads:
“No trailer, basement, tent, garage or temporary quarters shall at any time be used as a residence on any portion of said Memorial Park Addition.”
The court in Hussey gave consideration to the fact that the term “trailer” was contained within the same clause as the statement concerning temporary structures. The court noted that this syntax was indicative of the intent of the maker of the restriction and held that the primary purpose of the restriction was to prevent the owner of the property from using any temporary structure for a residence. The covenant in the instant case also utilizes the term “trailer” and “temporary quarters” in the same clause, reflecting the intent of the maker to prohibit the use of the land from temporary habitation or makeshift dwellings. The mobile home cannot be said to be a makeshift or a temporary structure; it is a permanent structure with great utility and service to a substantial segment of *363 society. As noted previously, its mobility is marginal; the vast majority of mobile homes are moved from the dealer’s lot to a particular purchased site where they remain permanently affixed to the ground and connected to all utilities.
The mobile home constitutes a significant form of permanent housing as noted by the Texas Legislature in its declaration of purpose in the Mobile Homes Standards Act, supra. The majority of mobile home dwellers see the mobile home as their permanent residence. The mobile home has become a major form of housing in Texas with one out of every three homes purchased in 1972 being a mobile home. In cost and size, it is comparable to a moderate income home. 5 The public has accepted the mobile home as a permanent form of residence; accordingly, the courts must recognize the stature of the mobile home in the housing industry and its fulfillment of the public need for economical housing as did the court in Yeager v. Cassidy, 20 Ohio Misc. 251 , 253 N.E.2d 320, 323-24 (1969), in which the court held:
“The court is of the opinion that the issue evoked by these proceedings is of broad import and will probably become critical as the use of pre-fabrieated and pre-built structures becomes more prevalent.
“It should be pointed out that in most situations, the restrictive covenants were imposed before the advent of the modern mobile home, and therefore, were not within the contemplation of the imposer of the restrictions. The courts must acknowledge that pre-built homes, mobile or otherwise, which in a given case may be more attractive in appearance and design than many conventional homes built completely on the site, are a part of our changing society, and give recognition to the fact that the law must be responsive to the best interests of those whom it is designed to serve. Unless such dwellings are expressly and explicitly excluded by the terms of a protective covenant, their use should not be enjoined, provided that in each case, the dwelling otherwise conforms to the spirit of the restriction.”
The mobile home does not warrant categorization as a trailer or as a temporary or a makeshift structure; therefore, it cannot be said to be prohibited by the restrictive covenant.
This writer would hold that the restrictive covenant should be enforced to prohibit the utilization of trailers as residences on the lots in the Memorial Park subdivision; however, the restriction should not be enlarged to prohibit the occupation of mobile homes as residences in the subdivision. It is apparent that it could not have been and was not the intention of the parties to the 1948 restrictive covenant to prohibit mobile homes. Furthermore, under a strict reading of the covenant, the language does not encompass the permanent residential dwellings offered by mobile homes. Therefore, as neither the intention of the parties nor a strict reading of the covenant supports a finding that mobile homes are encompassed by the restriction, this writer would affirm the opinion of the court of civil appeals.
STEAKLEY and POPE, JJ., join in this dissent.
. Historical and statistical data on the trailer and the mobile home were compiled herein from: B. Hodes and G. Roberson, The Law of Mobile Homes (3rd ed. 1974); F. Bair, “Mobile *360 Homes — A New Challenge,” 32 Law & Contemp. Prob. 288 (1967); 2 R. Anderson, American Law of Zoning §§ 11.49-11.58 (1968); Shephard’s Mobile Homes and Mobile Home Parks (1975); and 2 N. Williams, American Planning Law Land Use and the Police Power §§ 57.01-57.42 (1974).
. Shephard’s Mobile Homes and Mobile Home Parks at 3 (1975), citing Mobile Homes in Idaho — A Status Report, Boise State College, Center for Business and Economic Research (1973).
. Practising Law Institute, Mobile Homes — Le gal and Business Problems at 14 (2d ed. 1971).
. Texas Department of Community Affairs, Division of Housing, Texas Mobile Home Survey, at 19 (Sept. 1974).
. Statistics and conclusions are the result of a statewide survey of mobile home occupants. Texas Department of Community Affairs, Division of Housing, Texas Mobile Home Survey (Sept. 1974).