This in turn strongly suggests that the business or calling contemplated in the old cases was one which would require the special adaptation of the property in question to the particular calling or business exercised, such as, for example, a dentist's office or an auto mechanic's garage. See Mays v. Mays, 43 S.W.2d 148, 152 (Tex.Civ.App.-Beaumont 1931, writ ref'd); Lyon v. Files, 50 Tex.Civ.App. 630[ 50 Tex. Civ. App. 630], 110 S.W. 999, 1001 (1908, no writ). It is not likely that the justices of the Texas Supreme Court a century ago contemplated the dramatic shift to service-oriented paper shuffling that marks so much of modern-day callings.
We agree with the holding of the Beaumont Court of Civil Appeals, The essential elements of the term "business" as used in the Constitution are lacking in the operations which the plaintiffs in that case sought to bring within the purview of a "business." The case of Lyon v. Files, 50 Tex. Civ. App. 630 110 S.W. 999, is also relied upon by the Construction Company. That was a case in which the owner had built an extra house on the lot which constituted his homestead, and had alternated his residence in the two houses.
See id. at 176. See e.g., Duncan v. Woolf, 380 S.W.2d 862, 868 (Tex.Civ.App.-Fort Worth 1964, writ ref'd n.r.e.); C.D. Shamburger Lumber Co. v. Delavan, 106 S.W.2d at 357; Mays v. Mays, 43 S.W.2d 148, 152 (Tex.Civ.App.-Beaumont 1931, no writ); Lyon v. Files, 50 Tex. Civ. App. 630, 110 S.W. 999, 1001 (1908, no writ). Renting activity is generally classified as investment activity rather than a business or calling, because it requires little time and attention and does not comport with the general accepted notions of business. C.D. Shamburger Lumber Co. v. Delavan, 106 S.W.2d at 357.
For example, Texas courts have long held that the mere renting of property does not constitute a calling or business sufficient to provide a business homestead exemption. E.g., B. Duncan v. Woolf, 380 S.W.2d 862, 868 (Tex.Civ.App.-Fort Worth 1964, writ ref'd n.r.e.); C.D. Shamburger Lumber Co. v. Delavan, 106 S.W.2d at 357; Mays v. Mays, 43 S.W.2d 148, 152 (Tex.Civ.App.-Beaumont 1931, no writ); Lyon v. Files, 110 S.W. 999, 1001 (Tex.Civ.App. 1908, no writ). Such activity is classified as investment activity rather than a business or calling, because it requires little time and attention and does not comport with the general accepted notions of business. C.D. Shamburger Lumber Co. v. Delavan, 106 S.W.2d at 357; But see, Orr v. Orr, 226 S.W.2d 172, 175 (Tex.Civ.App. — Amarillo 1949, no writ).
Similarly, rental of rooms in a private home does not change the obviously residential character of that home. See Lyon v. Files, 50 Tex. Civ. App. 630, 110 S.W. 999. (We consider inapplicable cases, cited by both parties, involving the construction, remodeling or use of buildings upon lands under restrictive covenants relating to residence, business or commercial uses. In each such case, the permissible user, a contractual matter, is both contingent upon the language of the particular covenant involved, and is enforceable as to a specific building in a nonresidential area.
Renting or leasing property has generally not been considered a business or calling, even if rental income is an individual's sole source of income. See Mays v. Mays, 43 S.W.2d 148, 152 (Tex.Civ.App.-Beaumont 1931, writ ref'd); Lyon v. Files, 50 Tex. Civ.App. 630, 110 S.W. 999, 1001 (1908, no writ); Angus S. McSwain, The Texas Business Homestead in 1990, 42 Baylor L.Rev. 657, 670 (1990). Courts have instead viewed rental property as an investment that does not take up a large portion of the property owner's time, labor, or attention.
To the same effect are the holdings of the courts in Railway Co. v. Dawson (Tex. Civ. App.) 174 S.W. 850; Railway Co. v. Oil Mill Co., 59 Tex. Civ. App. 330, 126 S.W. 627; Railway Co. v. Billingsly (Tex. Civ. App.) 37 S.W. 27; Railway Co. v. Hudson, 77 Tex. 494, 14 S.W. 158. Under article 6603, R.S., a railroad company is responsible for stock killed or injured if the road is not fenced, without reference to the negligence of the company, Railway v. Swan, 97 Tex. 340, 78 S.W. 921; Lyon v. Files, 50 Tex. Civ. App. 630, 110 S.W. 999; Railway v. Garcia (Tex. Civ. App.) 117 S.W. 204. To relieve itself from liability it devolves upon the company to show that the place where the injury occurred could not be fenced without danger to the employés of the company, or inconvenience to the public.
Shryock Rowland v. Latimer, 57 Tex. 674. In the case of Lyon v. Files, 50 Tex. Civ. App. 630, 110 S.W. 999, the appellee had built a rent house on his home property, and obtained judgment for the rent house as his business homestead, but in reversing the judgment the Court of Civil Appeals of the Fifth District held: "It seems clear that the renting of rooms by appellee was not the pursuit of a calling within the meaning of the Constitution.