122 S.W. 379 (Mo.App. 1909), Spahr v. Cape

Citation122 S.W. 379, 143 Mo.App. 114
Opinion JudgeREYNOLDS, P. J. (after stating the facts).
Party NameWALTER H. SPAHR et al., Respondents, v. LEANDER W. CAPE et al., Appellants
AttorneyJ. C. Kiskaddon, G. A. Wurdeman, Chas. A. Powers for appellants. C. J. Harrison for respondents. Wm. F. Smith, of counsel for respondent Lang, filed argument.
Case DateNovember 02, 1909
CourtCourt of Appeals of Missouri

Page 379

122 S.W. 379 (Mo.App. 1909)

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

Page 380

[Copyrighted Material Omitted]

Page 381

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...

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36 practice notes
  • 299 P. 132 (Ariz. 1931), Civ. 2970, Continental Oil Co. v. Fennemore
    • United States
    • Arizona Supreme Court of Arizona
    • May 27, 1931
    ...146 A. 914; 277 Hunter v. Wood, Pa. 150, 120 A. 781; brown v. Huber, 80 Ohio St. 183, 28 L.R.A. (N.S.) 705, 88 N.E. 322; Spahr v. Cape, 143 Mo.App. 114, 122 S.W. 379; Pierce v. St. Louis Union Page 136 Trust Co., 311 Mo. 262, 278 S.W. [38 Ariz. 288] 398; Ludgate v. Somerville, 121 Or. 643, ......
  • 111 S.W.2d 988 (Mo.App. 1938), Roth v. Hoffman
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • January 4, 1938
    ...v. Kessmann, 84 Mo. 318; Laughlin v. Wells, 283 S.W. 990; Wood v. Oil Co., 220 Mo.App. 1004, 274 S.W. 894; 21 C. J. 1151; Spahr v. Cape, 143 Mo.App. 114; Harrison v. McReynols, 183 Mo. 533, l. c. 550. (5) To support a plea of estoppel as to titles to real estate, it has been held that it mu......
  • 154 S.W. 808 (Mo.App. 1913), Thompson v. Langan
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • March 1, 1913
    ...Mo.App. 229; Godfrey v. Hampton, 148 Mo.App. 157; Semple v. Schwarz, 130 Mo.App. 65; Ketchen v. Hawley, 150 Mo.App. 497; Spahr v. Cape, 143 Mo.App. 114; Noel v. Hill, 158 Mo.App. 426; Compton Hill Imp. Co. v. Strauch, 162 Mo.App. 76; King v. Trust Co., 226 Mo. 351; Litchfield v. Boogher, 23......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...contained the unanimous consent of the owners of the entire addition. Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, sec. 469. (2) Changed conditions in the ter......
  • Request a trial to view additional results
36 cases
  • 299 P. 132 (Ariz. 1931), Civ. 2970, Continental Oil Co. v. Fennemore
    • United States
    • Arizona Supreme Court of Arizona
    • May 27, 1931
    ...146 A. 914; 277 Hunter v. Wood, Pa. 150, 120 A. 781; brown v. Huber, 80 Ohio St. 183, 28 L.R.A. (N.S.) 705, 88 N.E. 322; Spahr v. Cape, 143 Mo.App. 114, 122 S.W. 379; Pierce v. St. Louis Union Page 136 Trust Co., 311 Mo. 262, 278 S.W. [38 Ariz. 288] 398; Ludgate v. Somerville, 121 Or. 643, ......
  • 111 S.W.2d 988 (Mo.App. 1938), Roth v. Hoffman
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • January 4, 1938
    ...v. Kessmann, 84 Mo. 318; Laughlin v. Wells, 283 S.W. 990; Wood v. Oil Co., 220 Mo.App. 1004, 274 S.W. 894; 21 C. J. 1151; Spahr v. Cape, 143 Mo.App. 114; Harrison v. McReynols, 183 Mo. 533, l. c. 550. (5) To support a plea of estoppel as to titles to real estate, it has been held that it mu......
  • 154 S.W. 808 (Mo.App. 1913), Thompson v. Langan
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • March 1, 1913
    ...Mo.App. 229; Godfrey v. Hampton, 148 Mo.App. 157; Semple v. Schwarz, 130 Mo.App. 65; Ketchen v. Hawley, 150 Mo.App. 497; Spahr v. Cape, 143 Mo.App. 114; Noel v. Hill, 158 Mo.App. 426; Compton Hill Imp. Co. v. Strauch, 162 Mo.App. 76; King v. Trust Co., 226 Mo. 351; Litchfield v. Boogher, 23......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...contained the unanimous consent of the owners of the entire addition. Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, sec. 469. (2) Changed conditions in the ter......
  • Request a trial to view additional results