Aluminum Company of America v. Kohutek

455 S.W.2d 789, 1970 Tex. App. LEXIS 1953

• Court: Court of Appeals of Texas
• Decided: March 26, 1970
• Docket: 524
• Status: Published

Opinions

OPINION

SHARPE, Justice.

This suit was brought by appellant, a corporation, sometimes hereafter “Alcoa” to permanently enjoin appellee Kohutek from parking, maintaining, improving, residing in, using or occupying a trailer house (or mobile home) on a 2.5 acre tract of land in Port Lavaca, Texas, on the ground that a trailer house on the property violated a restrictive covenant in favor of appellant which was included in appellee’s deed. After jury trial, the lower court rendered judgment based on the verdict that appellant take nothing by its suit.

Calhoun Development Company, a wholly owned subsidiary of appellant, originally organized, restricted and platted the Lynn-haven subdivision in Port Lavaca, Texas. Subsequently, Calhoun Development Company was dissolved and Alcoa acquired title to all unsold tracts in Lynnhaven. The land within the boundaries of the subdivision was divided into some 250 residential lots and several acreage tracts. On June 1, 1949, Calhoun Development filed of record a plat of Lynnhaven subdivision. As a part of the plan or scheme for the development of Lynnhaven as a first class residential area for management employees of Alcoa a detailed set of restrictions on the use of the residential lots was filed of record along with the plat of the subdivision. Paragraph 8 of such restrictions provides in part:

“No trailer * * * shall at any time be used as a residence, temporarily or permanently, nor shall any structure of a temporary character be used as a residence.”

The acreage lots in the subdivision were not subject to that specific restriction but, as is material to this case, to a different deed restriction now to be discussed. On May 3, 1962, Alcoa conveyed a 2.5 acre tract in Lynnhaven to J. W. Linville, Jr. subject to a deed restriction reading as follows:

“It is a condition of this conveyance that until ten (10) years have elapsed from the date hereof, 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 and Grantor has given its written approval of the same; by acceptance of this deed Grantee agrees for himself, his heirs and assigns that the condition just stated shall be a covenant running with the land, which shall be faithfully observed by Grantee, his heirs and assigns.”

All acreage tracts located in Lynnhaven which have been sold by Alcoa were subject to a similar deed restriction.

On March 3, 1969, Kohutek acquired title to the said 2.5 acre tract by deed from Linville which adopted the Alcoa restriction last above set out. Prior to securing that deed and without obtaining Alcoa’s written approval, Kohutek parked a trailer house on the property and with his family began to reside therein. On April 14, 1969, Alcoa filed suit against Kohutek to enforce the deed restriction and to enjoin Kohutek from parking, maintaining, improving, residing in or otherwise using or occupying as a residence the trailer house located on the 2.5 acre tract in Lynnhaven. Kohutek answered and pleaded that an Alcoa employee, G. A. Rhoades, verbally consented to placing of the trailer house upon the land; and, therefore, Alcoa was estopped from securing the injunction it seeks; and that Alcoa had waived its claim to enforce the covenant or restriction. Kohutek further pleaded that enforcement of the deed restriction would be “ * * * discriminatory and unlawful.”

In response to seven special issues the jury found in substance as follows: (1) The action of Kohutek in locating his trailer house on the land in question without securing Alcoa’s written consent constitutes a distinct and substantial breach of the restrictive covenant in question, (2) Alcoa acted arbitrarily or capriciously in refusing to consent in writing to Kohutek maintaining a trailer house as a residence on the land in question. (3) On February 19, 1969, Rhoades falsely represented to Kohu-tek that Alcoa consented to Kohutek placing a trailer house on the land in question. (4) At the time Rhoades represented to Kohutek that Alcoa consented to Kohutek placing a trailer house on the land in question Rhoades knew that Alcoa had not so consented. (5) Kohutek did not have knowledge or the means of determining that Alcoa would not consent to his placing a trailer house on the land in question. (6) Rhoades represented to Kohutek that Alcoa consented to the placing of a trailer house on the land in question with the intention that such representation should be acted upon by Kohutek. (7) Kohutek purchased the trailer house and placed same on the land in question in reliance upon the representation of Rhoades that Alcoa consented to his placing a trailer house on the land in question.

Appellant asserts fourteen points of error. Point one asserts that the trial court erred in rendering a take-nothing judgment against Alcoa because the evidence conclusively established that appellee breached the restriction in his deed and that Alcoa did not act arbitrarily or capriciously in refusing to consent in writing to appellee placing a trailer house on the land in question. Appellant’s point four asserts additionally that Alcoa is not es-topped from asserting the deed restriction. Appellant’s remaining twelve points assert that the evidence is legally and factually insufficient to support the jury answers to special issues 2, 3, 4, 5, 6 and 7. Appellant agrees with the jury finding on special issue No. 1.

Appellee’s brief not only replies to appellant’s fourteen points of error but also contains “appellee’s point in support of judgment,” which we will first consider. Here appellee contends that the judgment should be affirmed irrespective of the jury verdict because as a matter of law a trailer house is not a building or improvement within the terms of the restrictive covenant in appellee’s deed. We disagree with appellee’s stated contention and hold that the trailer house here involved is at least a building within the meaning of the restrictive covenant.

It may be said that generally the word “building” includes an erection or structure intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. See Mutual Lumber Co. v. Sheppard, 173 S.W.2d 494 (Tex.Civ.App., Austin, 1943, n. w. h.), in which the Court said:

“ * * * It is generally held, however, that the meaning of the noun ‘building’ depends usually upon the particular facts and circumstances of each case, controlled largely by the intention of the parties, or by the aim or purpose of a particular statute. The noun ‘building’ has been generally held to include any edifice erected by the hand of a man of lumber, iron, stone, brick, wood, marble, cement, or any other substance, connected together, and designed for any use in the position fixed; or to include an edifice, an erection, a fabric built or constructed; a structure designed for the habitation of men or animals, or for the shelter and protection of property. Whenever the noun ‘building’ is used in this sense it has been held to include all sorts of structures, fabrics built or constructed, edifices or erections used or useful to man. * * * ”

At the time the present dispute arose the trailer house was more or less permanently located on the 2.5 acre tract purchased by Kohutek. The trailer house had been deprived of all means of locomotion, not only by detachment from the truck that delivered it but also by reason of the fact that it had been lifted off its wheels and placed on blocks. It has a roof, side walls, floor, cross walls and furnishings. It is connected to public utilities. It has beds, bath, toilet and cooking facilities. It is used as a place in which eight people live, eat and sleep. Under the facts, the trailer house falls within the scope of the definition of “building” whether such word be given a broad or restricted meaning. See 12 C.J.S. Building p. 380.

In Corning v. Town of Ontario (1953), 204 Misc. 38, 121 N.Y.S.2d 288, Corning sought to restrain the defendants from attempting to enforce the provisions of a town zoning ordinance which provided that one story residential buildings in “A” districts should contain at least 900 square feet. Corning and family lived in a trailer house containing less than 900 square feet. The trial court granted Corning the injunction sought, but the judgment was vacated on appeal. The Court held in part as follows:

“The papers before the court do not indicate whether the trailer rests upon wheels, jacks, blocks, or some type of permanent foundation. The plaintiffs do however allege that sanitary facilities have been installed including a septic tank and well and that electricity has also been installed. It is apparent, therefore, that the trailer has been affixed to the land by such sanitary and electrical connections. The plaintiffs further say that they sold their house and bought the trailer and the lot upon which it stands for the purpose of their residence and that they now have no other place in which to live. It is therefore apparent that the plaintiffs intend to occupy this trailer and the lot on which it is located as a permanent residence.

“Plaintiffs claim that the trailer is not a building because it is something mobile. Mobile it was when used upon the highway, but mobility ceased when it was removed from the highway, attached to the soil and occupied as living quarters. A metamorphosis has occurred; the mobile vehicle has become a fixed residence.”

“The meaning of the word ‘building’ as used in the Zoning Ordinance must also be considered in the light of the purpose for which such ordinance was enacted. Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415, at page 420, 88 N.E. 747, 749, 30 L.R.A..N.S., 30. The Town Law empowers a Town Board to enact zoning ordinances to regulate and restrict the height, number of stories and size of buildings and other structures for the purpose of promoting the health, safety, morals, or the general welfare of the community. Town Law, § 261. For such purposes the town may be divided into districts in which the ordinance may regulate and restrict the erection, construction, reconstruction, alteration or use of building, structures or land. Town Law, § 262. Pursuant to the power so granted, the Zoning Ordinance in question was adopted. The purpose of the statute and of the ordinance itself was not to aid the individual owner but to promote the development of property in the town for the general welfare of the entire community. Rodgers v. Village of Tarrtown, 302 N.Y. 115, at page 124, 96 N.E.2d 731, 734.

“In furtherance of such general purpose the ordinance provided that one story residential buildings in ‘A’ districts should contain at least 900 square feet. It is plaintiffs’ position that such requirement applies to residences erected upon the premises but not to trailers because they are constructed elsewhere and then moved on their own wheels upon the premises. If this contention is to prevail, our finest residential districts could be interspersed with house trailers used as permanent residences without regard to height or size. The Court is of the opinion that the word ‘building1 as used in Section 6 of the ordinance applies to the house trailer in question for to hold otherwise would be to thwart the very purpose for which the ordinance was enacted.”

In Aetna Life Ins. Co. v. Aird (5th Cir. 1939), 108 F.2d 136, the issue was whether a trailer house used as a dwelling was a “building” within the meaning of an insurance policy. The Court held that it was, and in part stated:

“Streamlined, mounted on two wheels, and capable when connected with beast or vehicle having motive and tractor power, of swift and easy motion, though it was, it was not automotive, and it was not bought to be, nor was it, used, except incidentally, for locomotion. The only use made of its movability was to get it to the place where it was to be used, just as ready cut houses, if small enough, may be and sometimes are moved, and set up complete. Well, indeed completely, equipped as a place in which to live, with beds, bath, toilet, cooking facilities, side walls, a roof and floors, and with cross walls subdividing it into parts, it was bought and equipped to be, and at the time of the fire, was being and had for a week been, used, as deceased’s residence and office combined. In effect, a modern efficiency apartment, it had been transported to the oil field where the deceased was drilling a well, and there, disconnected from the automobile, it had been raised up, its four corners supported by four heavy special jacks placed directly underneath its substantial steel braced beamed floor, and its outside walls. Thus, what had been built for a dwelling or place to live, movable from place to place, was at rest, and was being occupied as a dwelling, as completely as if, instead of a trailer, it were a ready cut or knocked-down house, transported to the field, either set up, or in units for setting up.

“As such, it was certainly a building, in the sense of a dwelling, 12 C.J.S., Building p. 378; Rouse v. Catskill & N. Y. Steamboat Co., 59 Hun. 80, 13 N.Y.S. 126; Neekamp v. Huntington Chamber of Commerce, 99 W.Va. 388, 129 S.E. 314. It was too, a building, in the generic sense of something built or constructed for use as a shelter or habitation for man or beast. If instead, of a completed trailer, the material which made it up, had been assembled on the lease, and there built into a dwelling or habitation for deceased’s use, no one could, we think, contend that the resulting structure was not a building. The fact that it was completed before transportation and equipped with wheels to roll it, does not, we think, at all change the undisputed fact that in every essential respect, it was built for and was being used by deceased, as a shelter and habitation, in short, a dwelling. The District Judge, in his opinion pointed out the great scope and breadth of the term, and to the many holdings of the courts, that comprehensive, generic, and having no inflexible meaning, applicable to all cases alike, but having flexibility and varying with the context and surrounding circumstances, those who would seek a narrowing construction for it in a particular context, must show sound reason for that narrowing.

“ * * * What is dominant here, as to the trailer, is the purpose for which it was built and used, and to which it is primarily adapted. That purpose, to be used as a shelter and habitation for deceased, in short, a dwelling house, stands out in and dominates the case. A dwelling house, constructed so as to be easily movable, at times, running or standing on its wheels, at times, sitting fixedly on jacks or other rigid support, it is still at all times, a dwelling house. A built dwelling house, having greater commodiousness, convenience and adaptability, to the uses of a house dweller, than huts, shacks, hovels, shanties and even many small houses of a better grade, all of which are of course, buildings. If we should suppose the case of a hut, shanty, or other small house, sitting upon a wagon or truck, having wheels, so that it might be moved about, from place to place, for the convenience and use of the dweller, I think it would hardly be contended, that a dweller in it holding a policy of the kind at bar, was not covered as to injuries caused by its burning while he was in it, because the house could be, or was being moved about on wheels.

“I see no more reason to deny coverage to a building of the trailer type, merely because it has wheels to run on.”

Appellee’s point in support of the judgment — that the trailer house in question is not a building or improvement within the meaning of the restrictive covenant here involved — is overruled.

Aside from the question of whether the trailer house is a building, the remaining dispositive issues relate primarily to whether the evidence is legally sufficient to support the jury answers to special issues 2 through 7. We agree with appellant that it was not. In view of the jury finding in answer to special issue No. 1 — that locating the trailer house on the tract involved without Alcoa’s written consent constituted a distinct and substantial breach of the restrictive covenant in question — appellee was required to establish either that Alcoa acted arbitrarily or capriciously in refusing to grant appellee’s request or that Alcoa was estopped to enforce the restrictive covenant in question. We hold that the evidence was not legally sufficient to support either of these defenses and that the injunction sought by Alcoa should have been granted.

We will now consider appellant’s contention that Alcoa did not act arbitrarily or capriciously in refusing to consent in writing to Kohutek maintaining a trailer house as a residence on the land in question. Here Alcoa says that the evidence (1) conclusively established that issue in its favor, or (2) was legally insufficient to support the jury finding on special issue number 2, or (3) was factually insufficient to do so.

The evidence is conclusive that Kohutek sought Alcoa’s written consent to the placing of a trailer house on the 2.5 acre tract in question, that Kohutek did not submit any plans and specifications for a building or improvement to Alcoa, and that Alcoa has not given its written approval to Kohutek’s request. In early 1969 Kohutek, his wife and children were living in a rented house in Port Lavaca, Texas. On February 2, 1969, the owner advised Kohutek that he must vacate the house by February 25, 1969. Thereafter, Kohutek contacted Linville, who had purchased from Alcoa, concerning the purchase of the 2.5 acre tract here involved. Linville quoted a price for the land, but Kohutek did not commit himself to purchase it. On Sunday, February 16, 1969, Kohutek and his wife located a trailer house at Burl Mobile Homes in San Antonio, Texas, that they considered purchasing. Kohutek filled out the necessary forms for a credit check and informed the salesman that he would notify him and send the down payment later in the week “ * * * if everything went o. k.” On Wednesday, February 19, 1969, Kohutek went to the city manager’s office in Port Lavaca to secure information about connecting a trailer house to city utilities. A clerk in that office informed Kohutek that the city had no zoning ordinances prohibiting trailer houses on the land but that the land “ * * * had a restriction with Alcoa.” Kohutek then phoned George A. Rhoades, the tax and housing employee of Alcoa. During the conversation Kohutek advised Rhoades that he was contemplating purchase of the Linville tract in Lynnhaven and inquired as to the possible use of a trailer house as a residence on the tract. Rhoades read to Kohutek the restrictive covenant in the Linville deed. The facts just stated concerning the telephone conversation between Kohutek and Rhoades are undisputed, but in some other respects the testimony is conflicting. Kohutek’s testimony concerning the conversation was in part as follows: After Rhoades advised him about the restrictive covenant in the deed to Linville, Rhoades said that there was no restriction as to mobile homes and “that these things were a matter of formality, to send him a letter as soon as Mr. Linville, if we came to a conclusion on this deal.” Kohutek said the conversation was very informal. Rhoades’ testimony concerning the conversation with Kohutek was in part as follows:

“Q Did he ask you whether or not Alcoa would consent to the placing of a trailer home on the land in question ?

A Yes, sir.

Q What did you inform him?

A I told him there were these conditions in the deed and since there were no plans or specifications for a home such as he had in mind he would have if he completed the deal to write us a letter stating just what he planned to do and I would submit it for approval and try to expedite it for him.”

Rhoades further testified that he did not have any actual authority to grant consent or permission to anyone to park a trailer house on property owned by Alcoa and there was no contradictory evidence on that subject. Subsequently, Kohutek phoned Burl Mobile Homes and obligated himself to purchase a trailer house. Ko-hutek was informed that the trailer house could be delivered to him in Port Lavaca on Tuesday, February 25, 1969, and he sent Burl Mobile Homes a down payment on it. On the evening of February 19 or 20 Ko-hutek phoned Linville and orally agreed to purchase the 2.5 acre tract in Lynnhaven. Linville agreed to meet Kohutek in Port Lavaca to work out the details of the sale. On Saturday, February 22, 1969, Kohutek met Linville in the office of Linville’s attorney, and the terms of the sale were agreed upon. At this meeting Linville asked Kohutek if he was aware of the restrictive covenant in the deed from Alcoa, and Kohutek informed Linville that he was. Linville’s attorney handed Kohutek a copy of Linville’s deed from Alcoa, and Kohutek read the restrictive covenant. On Monday morning, February 24, 1969, Kohutek applied to the city water works for water and sewer taps which were installed the afternoon of the same day (and ultimately tied in to the trailer house on February 27). Also, on the morning of February 24, 1969, Kohutek informed Rhoades that he had contracted to purchase the Linville tract. Rhoades advised Kohutek to write Alcoa a letter requesting approval to place a trailer house on the land. On the afternoon of February 24, 1969, Kohutek delivered the following letter to Rhoades’ office:

“116 Jennings Port Lavaca, Texas February 24, 1969

Aluminum Company of America Point Comfort, Texas Attention Mr. George Rhodes Gentlemen:

The following is a request that 1, Albert W. Kohutek, be permitted to park a mobile home as a temporary home for two to three years, with plans to build a home in the near future.

Property is located south of Calhoun Street, Block 9, 2.5 acres formerly owned by Jay Linville and bought by me on February 22, 1969, handled by Attorney George F. Rhodes, 524-2971.

Mobile home is a new 1969 Parkwood 12 x 64 trailer. Intend to park trailer on west end of property. The trailer will arrive in Port Lavaca February 25, 1969, and will be set up completely on foundation by movers. Due to the time element, we would greatly appreciate your immediate attention to this request. I am hoping for only one permanent move and set-up of mobile home.

Thanking you for your consideration.

Yours truly,

/s/ Albert W. Kohutek Albert W. Kohutek

AWK:jb Enclosure”

Attached to the letter was a plat showing where Kohutek wished to place the trailer and a note containing Kohutek’s phone number. Rhoades immediately delivered the letter to Mr. Wahlsten, Alcoa’s chief executive officer at Point Comfort, who contacted Alcoa’s home office in Pittsburgh in an effort to determine what the intention of the covenant was. Alcoa’s management decided that it must refuse to approve Kohutek’s request in order to protect the people who owned property in Lynnhaven. At the time such decision was reached Mr. Wahlsten did not know Kohutek and neither he nor Alcoa had anything against Kohutek and had no reason to harm him.

The trailer house was delivered to Ko-hutek in Port Lavaca on Tuesday, February 25, 1969. During the morning of that day Rhoades discovered that Kohutek had placed the trailer house on the land and that it was being mounted on blocks. Rhoades immediately notified Mr. Wahlsten. Rhoades testified:

“Q As of February 25, 1969 had Alcoa given Mr. Kohutek written consent to place a trailer house on this lot?

A Not as of that date, no, sir.

Q As of February 25, 1969 had Alcoa given any oral, word of mouth, consent to Mr. Kohutek to place this trailer house on this property?

A No.

Q Is it your testimony that as of the time Mr. Kohutek placed this trailer house on this lot he had no consent from Alcoa to place a trailer house there?

A That is right.”

On Wednesday, February 26, 1969, Ko-hutek called Rhoades and asked if he had received Alcoa’s consent to place a mobile home on the tract. Rhoades advised Ko-hutek that Alcoa did not so consent, and on the same date wrote Kohutek the following letter:

“February 26, 1969

Mr. Albert W. Kohutek

116 Jennings

Port Lavaca, Texas 77979

Dear Sir:—

This is to acknowledge receipt of your letter of February 24, in which you requested permission to park a Mobile Home on the 2.5 Acre Tract of land in Block 9, Lynnhaven, which land was originally sold by Aluminum Company of America to J. W. Linville, Jr., by deed dated May 3, 1962, and recorded in Volume 185 Page 352 of the Calhoun County Deed Records.

Pursuant to the condition contained in the above mentioned deed, which condition is a covenant running with the land, this is to advise that Aluminum Company of America does not approve of your proposal to park a Mobile Home on this acreage.

Very truly yours,

/s/ Geo. Rhoades

Geo. A. Rhoades

“Superintendent of Real Estate Aluminum Company of America Point Comfort Operations

GAR/r”

Since February 26, 1969, Kohutek has refused to move his trailer house. On February 27, or 28, 1969, Cecil H. Gear, Alcoa’s accounting manager, met with Kohutek in an attempt to resolve the dispute. Gear testified that in the course of this meeting Kohutek did not claim that Rhoades had given him permission to place a trailer house on the land. Kohutek, who was the last witness to testify, did not dispute such testimony.

On March 3, 1969, J. W. Linville executed a warranty deed conveying the property in question to Kohutek. This deed adopted by reference the restrictive covenant contained in the deed from Alcoa to Linville. On March 19, 1969, Kohutek phoned Mr. Wahlsten and requested a meeting, and Mr. Wahlsten consented. The meeting was held, and the problem of the trailer house and possible solutions were discussed. Wahlsten testified that during this meeting Kohutek did not claim that Mr. Rhoades had orally consented to him placing the trailer house on the Linville tract. Kohutek also did not dispute that testimony and as to such meeting testified:

“Q * * * what was the substance of that conversation?

A I had called his secretary and made an appointment and went out. He said he would be glad to discuss the matter with me. And he told me at this time that Alcoa’s, I think, situation involving this, that he did not have anything against me and he hoped I didn’t take him personally. I told him I didn’t. And he said that they owed it to the property owners in the Lynn-haven subdivision to protect these covenants in these deeds and as such he was protecting me also by doing this.

Q And did you agree he was protecting you?

A No. No, I couldn’t really.”

Kohutek further testified:

“Q * * * do you more or less feel you have a right to stay there with your trailer house, Wayne?

A Yes, sir.

Q If you didn’t, would you get off?

A Definitely. If I thought I was hurting someone, I would move.”

“Q On what do you base your feeling you have a moral right to stay there ?

A I bought the property, Mr. Holstead.

Q It is much like what your friend said this morning, it is your property, you ought to be able to do with it what you want ?

A Yes, sir.”

Appellant’s basic position concerning the deed restriction in question is that it is valid and enforceable provided the right of refusal to approval of plans, buildings or improvements is based upon a reasonable determination made in good faith and not capriciously or arbitrarily. See 19 A.L.R. 2d 1268, annotation “Validity, construction, and effect of restrictive covenant requiring consent of third person to construction on lot.”; Kirkley v. Seipelt, 212 Md. 127, 128 A.2d 430 (1957); Hannula v. Hacienda Homes, 34 Cal.2d 442, 211 P.2d 302, 19 A.L.R.2d 1268 (1949) ; Parsons v. Duryea, 261 Mass. 314, 158 N.E. 761 (1927); Jones v. Northwest Real Estate Co., 149 Md. 271, 131 A. 446 (1925); Harmon v. Burow, 263 Pa. 188, 106 A. 310 (1919). See also: Hoffman v. Balka, 175 Pa.Super. 344, 104 A.2d 188 (1954); Stanford v. Brooks, 298 S.W.2d 268 (Tex.Civ.App., Ft. Worth, 1957, n. w. h.). Appellee does not disagree with the rule relied on by appellant but says that here the evidence is legally and factually sufficient to support the jury finding, on special issue 2, that Alcoa’s refusal was arbitrary and capricious.

The only reason shown by the evidence for Alcoa’s refusal to grant Kohutek’s request to place a trailer house on the 2.5 acre tract purchased by him is that Alcoa was attempting to protect the property values of the permanent residences and their owners in Lynnhaven, along with Alcoa’s right of reasonable control of buildings and improvements placed on the acreage tracts. Appellee also relies on evidence showing that Alcoa had previously consented under similar deed restrictions to construction on other acreage lots of two churches, a boat house and a sewage treatment plant. That action by Alcoa does not cause the refusal of Kohutek’s request to be unreasonable, arbitrary or capricious. The evidence does not show that the uses of such other acreage tracts are inharmonious with the adjoining area set aside for permanent residences. The locations of the boat house and sewage disposal plant are shown to be at or near the outer perimeter of the acreage lots and are isolated from the basic residential area, whereas most of the Kohutek tract is immediately across a street from the same.

Every residential lot in Lynnhaven is expressly made subject to a restriction which provides that no trailer shall at any time be used thereon as a residence, but the acreage tracts are not so specifically restricted. The tracts in the latter classification which have been sold by Alcoa have been conveyed subject to a restrictive covenant running with the land which requires the landowners to obtain Alcoa’s consent in writing before placing any building or improvement upon the land. The evident purpose of such a covenant is to allow Alcoa to control the development of the acreage tracts so as to prevent the owners thereof from using their land in ways which would be incompatible or inconsistent with the kind of residential subdivision here involved. Alcoa’s refusal to consent to Kohutek’s request is consistent with the fact that there are restrictions against the use of trailer houses in the residential lots of Lynnhaven, the fact that there is no other trailer house in Lynnhaven, and the fact that Alcoa does not want to presently permit trailer houses in Lynnhaven. Ko-hutek’s ownership of the 2.5 acre tract does not carry the right to disregard the contractual obligations imposed by the restrictive covenant. Alcoa’s management employees have met with Kohutek on several occasions in unsuccessful attempts to resolve the matter and the residents of Lynn-haven have also endeavored to secure the removal of Kohutek’s trailer house from Lynnhaven.

Under the evidence, the authorized agents of Alcoa were entitled to reasonably conclude that the placing of a trailer house on the tract in question constituted a use of the land which adversely affected the other property in Lynnhaven and was inharmonious with the residential lots. The evidence was legally insufficient to raise an issue and support a finding that Alcoa acted arbitrarily or capriciously in refusing to consent in writing to Kohutek’s request. Appellant’s points one and two are sustained. Under such holdings we need not reach appellant’s point three relating to factual insufficiency of the evidence to support the jury answer to special issue No. 2.

Appellant’s remaining points (4-14) relate to whether Alcoa was estopped from asserting the deed restriction in question and whether the evidence was legally and factually sufficient to raise and support the jury answers to special issues 3-7. We agree with appellant that it was not es-topped and that there was no evidence to support the answers to the last-mentioned issues.

The basic rules relating to the doctrine of estoppel are stated in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952) as follows:

“On the question of estoppel we find that ‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to his prejudice.’ 31 C.J.S., Estoppel, § 67, page 254. Also, ‘Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment. No one should be denied the right to set up the truth unless it is in plain contradiction of his former allegations or acts. If an act or omission is susceptible of two constructions, one of which is consistent with a right asserted by the party sought to be estopped, it forms no estoppel.’ Id. § 77, page 282, et seq.”

The burden of proving the essential elements of estoppel is on the party asserting it. The failure to prove any one or more of such elements is fatal and the opponent of the party relying on an estop-pel is not required to show the absence of any of its component elements. Concord Oil Co. v. Aleo Oil and Gas Corp., 387 S.W. 2d 635 (Tex.Sup.1965).

• The evidence in this case conclusively establishes that notice of the truth was effectively brought to the attention of Ko-hutek, the party seeking to invoke the doctrine of estoppel. On February 19, 1969 a clerk in the city manager’s office informed Kohutek that the 2.5 acre tract was subject to a restriction. In response to Kohutek’s inquiry Rhoades read the restrictive covenant to Kohutek over the phone. On February 22, 1969, Linville’s attorney advised Kohutek of the restrictive covenant and Kohutek read the deed in which such covenant was contained. Ko-hutek knew what was required by Alcoa as is evidenced by his letter dated February 24, 1969. Kohutek cannot now successfully claim that due to deception by Alcoa he did not know the true facts when he moved his trailer house onto the 2.5 acre tract on February 25, 1969. The evidence conclusively establishes and Kohutek, while on the witness stand, conceded that he deliberately proceeded to complete the transaction with Linville and received a deed to the land in question on March 3, 1969, some five days after he had been given express notice by Alcoa that it would not consent to the placing of a trailer house on the tract in question.

Rhoades testified that he never represented to Kohutek that Alcoa consented to his placing a trailer house in Lynnhaven and Kohutek admitted that Rhoades did not expressly say that Alcoa’s consent had been given. Such admission is supported by the facts showing that on February 24, 1969 Kohutek wrote Alcoa a letter seeking Alcoa’s consent, on February 26, 1969 Ko-hutek called Rhoades to find out if he had Alcoa’s consent, and that prior to the filing of this suit Kohutek did not claim that Rhoades had represented to him that he had Alcoa’s consent to place a trailer house on the 2.5 acre tract.

A careful examination of Kohutek’s testimony reflects that he relies on his own subjective impression and construction of his telephone conversations with Rhoades in order to arrive at a conclusion that Alcoa would upon written request grant its consent to the placing of the trailer house on the tract in question. But such testimony does not raise an issue as to whether Rhoades made a false representation of a material fact. The worst that can be said of Rhoades is that he attempted to inform and assist Kohutek to obtain the consent he sought but did not secure from Alcoa’s officials who had the authority to grant or refuse it. The jury’s finding on Special Issue No. 3 that on February 19, 1969 Rhoades falsely represented to Ko-hutek that Alcoa consented to his placing a trailer house on the land in question is not supported by the evidence. Kohutek has thus failed to prove the first element of estoppel and the jury’s answers to the remaining conditionally submitted estoppel issues in any event are immaterial and should be disregarded. The essential elements of estoppel are lacking here and Kohutek’s defense based upon it fails. Appellant’s points 4, 5, 7, 9, 11 and 13 that there was no evidence to support the jury findings on special issues 3-7 are sustained. Under such holdings we do not reach appellant’s points 6, 8, 10, 12 and 14 relating to factual insufficiency of the evidence to support the jury answers to issues numbers 3-7.

Appellant’s motion to disregard the jury findings on Special Issues 2-7, and to render judgment in its favor should have been granted.

The judgment of the trial court is reversed and judgment is here rendered that appellee Albert W. Kohutek be restrained and enjoined from parking, maintaining, residing in or otherwise using or residing in a trailer house or mobile home on the tract of land here involved, until May 3, 1972, except that said appellee shall be permitted to remove said trailer house or mobile home from said property and to make such use of it as may be necessary in such connection.

Reversed and rendered.