Spahr v. Cape

• Decision Date: 02 November 1909
• Citation: 122 S.W. 379,143 Mo.App. 114
• Parties: WALTER H. SPAHR et al., Respondents, v. LEANDER W. CAPE et al., Appellants
• Court: Missouri Court of Appeals

122 S.W. 379

143 Mo.App. 114

WALTER H. SPAHR et al., Respondents, v. LEANDER W. CAPE et al., Appellants

Court of Appeals of Missouri, St. Louis

November 2, 1909

[Copyrighted Material Omitted]

Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.

MODIFIED AND AFFIRMED.

STATEMENT.--Adopting in substance the statement of counsel for appellants in their principal brief, this is an action to restrain appellants defendants below, from erecting a store or business house on certain lots in Maplewood subdivision, on Sutton avenue, in St. Louis county. Maplewood subdivision was laid out in the county and the lots of the subdivision, except those fronting on Manchester avenue, were conveyed to different parties subject to certain conditions and restrictions, including the following:

"First, when a building is erected on said lot the front of said building shall not be less than twenty feet distant from the line of the street on which it fronts; but this provision shall not apply to the foundations of pillars, or open porches or verandas which may be built on the front of said residence.

"Second, not to erect or permit to be erected, occupied or used on said property any dramshop, or saloon, or livery stable, tannery, slaughter-house, dairy, boneyard, public cattle-shed, glue factory, nor any building designed or intended to be used for such purpose or purposes; also not to establish, maintain or permit any nuisance of any character on or adjacent to said property, and not to erect any building on said property to cost less than $ 1800 when completed.

"Third, not to erect or cause to be erected on said premises any building designed or intended to be used for any purpose except as a private residence.

"Fourth, it shall be lawful for any other person or persons owning any lots or parts of lots in said Maplewood subdivision, in behalf of and for the benefit of either themselves or the said owner or owners, or for any or either of them, to prosecute any proceeding at law or in equity against a person or persons infringing or attempting to infringe, or omitting to perform or to keep, observe or abide by said provision or provisions, for the purpose of preventing them from so doing, or collecting damage for such infringement or omission, or both."

It is further alleged in the petition that plaintiffs are owners of certain lots in the subdivision and that the defendant Cape is the owner of the west fifty feet of lots 1, 2 and 3, of block 4, having a front of one hundred and fifty feet on Sutton avenue, by a depth of about fifty feet on Maple avenue; "that Cape received property subject to said restrictions, but nevertheless is proceeding to erect thereon a building designed to be used as a store or business house and flats; that the front of said building as now planned will not be twenty feet distant from the line of the street on which it fronts, and that defendants Grannon and Koester are the contractors erecting the same; the plaintiff thereupon prayed for an order restraining the erection of said building, and for a further order restraining defendants from erecting at any time a store or business house or flats, or any other building on said lots except a private residence to cost not less than $ 1800, the front of which to be not less than twenty feet distant from the line of the street on which it fronts.

The answer of defendants admits the facts set out in the petition as to the subdivision of Maplewood, the conveyance of the lots subject to said restrictions and admits that the restrictions are truly set forth in the petition, and that defendant Cape is the owner of the west part of lots 1, 2 and 3, in block 4 of said subdivision; and that the same is subject to the conditions, restrictions and terms hereinbefore admitted to exist except so far as they may have been determined, abrogated, changed or annulled by the acquiescence and consent of the owners and grantors of said subdivision. Defendant Cape also admits that he is proceeding to erect a building on the west part of lots 1 and 2, of block 4, being a brick store and for office purposes, and that the same will not be within twenty feet of Sutton avenue and is designated to be constructed of brick, two stories high, at a cost of about $ 5000.

The answer further alleges that the subdivision referred to in the petition was surveyed and laid off in lots before the conditions were made and imposed thereon, and that lots 1, 2 and 3, of block 4, and all other lots of said subdivision adjoining Sutton avenue in blocks 4 and 6 fronted on Sutton avenue and not on the streets intersecting Sutton avenue, but that before defendant Cape acquired title to said parts of said lots the Maplewood Realty Company had abandoned the plan and design of said survey and divided and sold a large number of lots on Sutton avenue, among others the said parts of said lots in question by dividing and selling said lots along Sutton avenue at right angles to the plan of the original survey. That at the time the subdivision was laid out there were no street railroad tracks along Sutton avenue, and that since said time a double track railway has been laid along said avenue and are in frequent daily and nightly use; that immediately opposite the lots in question there has been constructed a loop and depot building for the use of the said railway, and a depot building in constant use for railway purposes; that on a number of the lots of said subdivision fronting on said Sutton avenue parties have, without any objection made by any of the property holders in said subdivision or by these plaintiffs, erected and now maintain buildings which are not used for residence purposes, but are maintained and used for business purposes, that cost less than $ 1000, and are built within less than twenty feet of the front of the lots on said avenue; that on the opposite side of said avenue numerous other kinds of business are now and for a long time have been carried on; that by reason of the premises said Sutton avenue and the lots fronting thereon in said subdivision have ceased to be desirable for purely residence purposes, and are only desirable or valuable for business purposes.

In reply to this answer the plaintiffs admit that there is a street railway in operation along Sutton avenue, and the loop has been erected opposite the lots in question, and they also admit that there have been business houses erected on Sutton avenue north and west of Maplewood subdivision, and that there are two small temporary buildings on said Sutton avenue, in said subdivision, one of which is owned by defendant Koester, and used by him as an office, and the other one is owned by Dr. Townsend, but that the buildings are small, temporary structures, set upon small posts and costing only a nominal sum; and they deny that they ever consented to the erection of said small buildings and their present use.

Still following the statement of appellants' counsel, the facts in evidence are that the subdivision, "called Maplewood," was platted in 1891. The property lies immediately west of the city limits on the Manchester Road. At the time the subdivision was made it was a raw piece of land, and Sutton avenue was simply an unimproved country road. Maplewood subdivision proper is set out on a plat attached to plaintiffs' abstract of the record, and is bounded by Marshall avenue, Manchester Road, Elm avenue and Sutton avenue. All the lots in the subdivision were disposed of by the company, and, with the exception of the lots fronting on the Manchester Road, the deeds conveying the same contain the restrictions set out in the petition. As an inducement for the street railway company to build to their subdivision the Realty Company built the station opposite the property in question, and induced the railroad company to make a five-cent fare to the station. The street railroad was built about twelve years ago, coming out the Manchester Road and turning south on Sutton avenue to the station, where the cars turn, and other cars carry passengers farther west to Kirkwood and Webster and Meramec Highlands from this point. The station consists of a waiting room, confectionery store and place for sale of soft drinks, and is used up to two o'clock in the morning for passengers who are transferred from western to western cars, and vice versa. Large crowds often congregate in front of this station and there is much noise and confusion by these people at all hours up to two o'clock. Sutton avenue is also used as a traffic way and thoroughfare for hauling freight from the Missouri Pacific Railroad on the south to the business establishments located in Maplewood on Manchester Road and elsewhere.

"According to the testimony of Mr. Koester, there are thirty-one business establishments on Sutton avenue, between Manchester Road and the Missouri Pacific Railroad; they include a grocery store, tombstone shop, two paint shops, tin shop, a gas-fitting shop, real estate office, lumber yard and office two doctors' offices and contractor's office on the east side of the street, and a concrete and coal yard, a real estate office, the loop and station heretofore mentioned, a drugstore, butcher shop and grocery, tin shop, two-story steampower planing mill, real estate and paint shop, undertaking establishment and livery stable, storage room, machine shop and hardware store, all on the west side of Sutton avenue.

"It further appears from the testimony of Mr. Koester that the lots of Maplewood subdivision fronting on Sutton avenue are occupied by two doctors' offices, and two double store buildings occupied by contractors, painters, real estate agents, architects and stenographers, a photograph of which is shown on plate, Exhibit 1. These...