Scharer v. Pantler

• Decision Date: 19 November 1907
• Parties: SCHARER et al. v. PANTLER et al.
• Court: Missouri Court of Appeals

105 S.W. 668

127 Mo. A. 433

SCHARER et al. v. PANTLER et al.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

1. COVENANTS—RESTRICTIVE BUILDING COVENANTS.

Though the law favors the free use of land, and restrictions in conveyances are strictly construed, proper building restrictions and other limitations on the use of property of a character which the law permits so as to restrict the use of one parcel thereof in favor of another will be enforced in equity in favor of or against him designed to be benefited or burdened thereby.

2. SPECIFIC PERFORMANCE — DISCRETION OF COURT.

Where specific performance is sought, the matter rests largely in the chancellor's discretion, and should be refused where the giving of the relief would violate familiar principles of equity jurisprudence.

3. COVENANTS—RESTRICTIVE BUILDING COVENANTS—ABANDONMENT.

An owner of several lots along a street in selling them required a covenant of the purchasers not to build nearer the street than 25 feet, but erected three houses on the 15-foot line, and all other buildings erected between 1886 and 1906 were placed on that line. Held, that there was an abandonment of the covenant, permitting one of the owners to build an addition to his house extending within 5 feet of the street line.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Suit to enforce a restrictive building covenant by Frederick Scharer and others against John E. Pantler and others. From judgment for defendants, plaintiffs appeal. Affirmed.

Henry H. Oberschelp, for appellants. John S. Leahy, for respondents.

NORTONI, J.

The suit is in equity and invokes the process of injunction. Plaintiffs seek to enjoin the defendant from erecting an addition to his residence in violation of an alleged building restriction contained in the deed. The circuit court, after hearing the evidence, dismissed the bill, and plaintiffs appeal.

The material facts with respect to the controversy are: About 1886 one Virginia S. Peugnet owned a tract of land in city block 1383, city of St. Louis, extending along and fronting upon the east side of Jefferson avenue, from Shenandoah avenue on the south, northward 601 feet and 6 inches; and, desiring to dispose of the same, formulated and adopted a plan to divide and plat the same into city residence lots, with a restriction to the effect that no building should be erected on any one of said lots nearer than 25 feet to the front line of said street, Jefferson avenue. About the same time Mrs. Peugnet herself, for the purpose of starting a residence section thereon, erected three two-story brick residences on three of the said lots mentioned. Each of these residences so erected by her, however, instead of being placed 25 feet from the front line of said street, were, in fact, erected 15 feet from the front street line. Each of said residences being the same distance, 15 feet, from the front line, they, of course, presented the appearance of a building line at that distance from the street, although the covenants in the deed required that no building should be erected nearer than 25 feet from the street line. About the same time that Mrs. Peugnet erected these buildings she sold and conveyed to one Cora Van Dam one of said lots containing the covenant on the part of said Cora Van Dam that neither she nor her heirs or assigns would erect or permit the erection of any building on said lot "nearer than twenty-five feet to the front line of said street." Said Cora Van Dam, however, did forthwith, just as her grantor, Mrs. Peugnet had done, erect a residence upon said lot, the front line of which was and is 15 feet from the front line of said street, and on the same line or apparent line of the three houses erected by her grantor. Mrs. Peugnet continued to and did sell and convey, with like covenants, all of the lots in said block to various purchasers, except one, which it seems from the evidence remains unsold, or unoccupied at least. Each and all of the purchasers of said lots, although their deeds contained a covenant requiring no building to be erected nearer than 25 feet to the front street line, have erected buildings upon their lots just as their grantor, Mrs. Peugnet, and as Mrs. Cora Van Dam had done; that is to say, each erected his or her building with its front 15 feet from said street line, and therefore on a line with the three buildings erected by Mrs. Peugnet and the one erected by Mrs. Van Dam. All of these places are residences, save one, located at the corner, which is a business house, occupied as a drug store. This building however, like all of the others in the block, is erected, notwithstanding the restrictive covenant, with its front line 15 feet from the street. There are 16 or 18 separate buildings in all, including the drug store, on as many lots, which consist of the entire properties with which the court is concerned, and all of these buildings have been erected and occupied for many years; some of them in 1886, 1887, 1888, and others a few years later. The defendant in this case purchased in 1902, and now owns and occupies as a residence, the Cora Van Dam property above mentioned. In the summer of 1906 defendant commenced the erection of an addition to his said residence, extending the same about 10 feet forward toward the street, with the purpose of occupying the same as a butcher shop and grocery store. The several property owners in the block facing on Jefferson avenue, after having called his attention to the covenant in the deed, forbidding any building nearer than 25 feet to the street line, requested and demanded that he desist from erecting such addition, and, upon the defendant declining to do so, they have joined as plaintiffs in this proceeding by injunction. The injunction is sought on the grounds that the 10-foot addition being erected by the defendant in front of his said residence is a violation of the covenants in his and plaintiffs' deeds. There is no question in this case as to whether or not the covenants in the deed inure to the benefit of the several lot owners in the block, nor will we concern ourselves with more than one proposition which seems to be conclusive on the case stated.

1. The law favors the free and untrammeled use of real property. Restrictions in conveyances on the fee are regarded unfavorably, and are therefore strictly construed. Hutchinson v. Ulrich, 145 Ill. 336, 34...