Kitchen v. Hawley
| Decision Date | 01 October 1910 |
| Citation | 131 S.W. 142,150 Mo.App. 497 |
| Parties | NELLIE A. KITCHEN et al., Appellants, v. MELVILLE A. HAWLEY, Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. M. N. Sale, Judge.
AFFIRMED.
Judgment affirmed.
A. M Frumberg for appellants; Alexander R. Russell of counsel.
(1) Covenants in a deed restricting the character of buildings to be erected should be fairly and reasonably construed so as to carry out the evident purpose of the restriction. 1 Jones on Real Property, sec. 735; Sanders v. Dixon, 114 Mo.App. 229; MacGregor v. Linney, 27 Ohio Cir. 490; Meigs v. Milligan, 177 Pa. 74; Schenck v Campbell, 11 Abb. Pr. 292; Harris v. Roraback, 137 Mich. 292; Dorr v. Harrahan, 101 Mass. 532. (2) Such covenants should be construed in the light of the circumstances surrounding their creation and the situation of the parties affected thereby. Schenck v. Campbell, 11 Abb. Pr. 292; Skillman v. Smatheurst, 57 N.J.Eq 1; Phillips v. Treeby, 8 Jur. (N. S.), 999; Buck v. Adams, 45 N.J.Eq. 552. (3) A covenant prohibiting the construction of more than one dwelling house should be construed to prohibit the erection of any sort of a building other than a dwelling house. Rogers v. Hosegood, 2 Ch. 388; Schenck v. Campbell, 11 Abb. Pr. 292; Blakemore v. Stanley, 157 Mass. 6; Child v. Douglas, Kay, 567; MacGregor v. Linney, 27 Ohio Cir. 490; Sanders v. Dixon, 114 Mo.App. 229; Pank v. Eaton, 115 Mo.App. 177. (4) Whether in its ordinary meaning, a building is a "dwelling" or a "dwelling house," depends upon its structure and arrangement rather than upon its use. Ivarson v. Mulvey, 179 Mass. 141; Rhodes v. McCormack, 4 Iowa 368; In re Lammer, 7 Biss. 269; Thomas v. Assurance Co., 162 Mass. 29; Insurance Co. v. Johnson, 4 Kan.App. 21. (5) A hotel or lodging house is not a dwelling nor a dwelling house. Thomas v. Assurance Co., 162 Mass. ___; Gannett v. Albree, 103 Mass. 372; People ex rel. v. D'Oench, 111 N.Y. 359; Parker v. Nightingale, 6 Allen 345; German v. Chapman, 7 Ch. Div. 271.
McDonald & Taylor and Joseph A. Wright for respondent.
(1) This action has been rested from its inception on the determination of appellants' counsel to have the court infer from present conditions that the original grantor of the restricted lands intended to create a limitation, in improvement and use, that clearly is not created by the language of the covenant. Carr v. Riley, 198 Mass. 70; Baptist Social Union v. Boston University, 183 Mass. 202; Kitching v. Brown, 180 N.Y. 414; 70 L.R.A. 742; Druecker v. McLaughlin, 235 Ill. 367; Telegraph Co. v. Telegraph Co., 155 Ill. 335. (2) Scharer v. Pantler, 127 Mo.App. 432; Stone v. Pillsbury, 167 Mass. 332; Carr v. Riley, 198 Mass. 70; Hutchinson v. Ulrich, 145 Ill. 336; Eckhart v. Irons, 128 Ill. 568; Telegraph Co. v. Telegraph Co., 155 Ill. 335; Kitching v. Brown, 180 N.Y. 414; Blackman v. Striker, 142 N.Y. 555; Grafton v. Moir, 130 N.Y. 465; Sonn v. Heilberg, 56 N.Y.S. 341; 6 Am. and Eng. Ency. Law (2 Ed.), 513; 1 Washburn Real Property, 3, 7. (3) Bearing in mind this primary rule of construction, restrictive covenants will be fairly construed to carry out the evident intent of the parties, but extrinsic circumstances and conditions will be considered only when the language used is obscure. And all doubts must be resolved in favor of free use of property and against restrictions: Kitching v. Brown, 180 N.Y. 414; 70 L.R.A. 742; Hurley v. Brown, 44 A.D. 480; Kurtz v. Potter, 44 A.D. 262; Sonn v. Heilberg, 56 N.Y. Supp, 341; Boyd v. Kerwin, 15 N.Y.S. 721; White v. Collins, etc., 81 N.Y.S. 434; Walker v. Renner, 60 N.J.Eq. 493; Durgea v. New York, 62 N.Y. 596; Lloyd, Building and Buildings, sec. 148; Hamilton on Covenants, 20, 21; 11 Cyc., p. 1078. (4) By expressly excluding certain structures and occupations the grantor must be ruled to have have impliedly included and privileged all other structures and business uses thereof and thereon--such as churches, schools, hospitals, office buildings, club houses and others not specifically excluded. Where parties have contracted in writing with express stipulations it is manifestly improper to extend these by implication; the presumption is that, having expressed some they have expressed all the conditions by which they are to be bound. Pank v. Eaton, 115 Mo.App. 171; Carr v. Riley, 198 Mass. 70; Clark v. Lee, 185 Mass. 223; Stone v. Pillsbury, 167 Mass. 332; Kitching v. Brown, 180 N.Y. 414; Clarke v. Devoe, 124 N.Y. 120; Hutchinson v. Ulrich, 145 Ill. 336; 11 Cyc. 1077-1078.
This is an injunction proceeding by which it is sought to restrain defendant from erecting a building in violation of an alleged covenant of restriction. The court declared as a matter of law on the face of the petition that the erection of a building described therein would not infringe the restriction pleaded and gave judgment for defendant accordingly. From this judgment plaintiff prosecutes an appeal.
It appears from the petition that about 1887 the Western Realty Company formulated a plan to sell and dispose of certain lots in the city of St. Louis subject to the restrictive covenants hereinafter set forth. Plaintiffs and defendant, at different dates, purchased adjoining lots, all of which are subject to the easement prescribed in the covenant. Plaintiffs erected dwellings on their lots in compliance with the covenants therein contained and now reside therein with their families. Defendant was proceeding to erect a hotel building on his lots when this action was instituted to restrain him from so doing. It is averred in the petition that defendant and all other persons who succeeded to the title of the Western Realty Company to any of the lots in the block of ground referred to enjoy the same subject "to and limited by the following exceptions, reservations, conditions and reversions, that neither said grantee nor anyone claiming by, through or under him, prior to the 31st day of December, A. D. 1920:
The petition avers that plaintiffs and others owning property in the block have constructed dwelling houses in which they reside, in accordance with the covenants aforesaid, but that defendant, in violation thereof, is now engaged in erecting on his lots a building forty-eight feet front by a depth of eighty feet, intended for business and commercial purposes, to-wit, a hotel or lodging house; that according to the plan of the building filed with the building commissioner of the city of St. Louis, and upon which the permit for its erection was issued, said building, if allowed to be erected, will contain in the basement a bath room, laundry, fuel room and furnace room; on the first floor, a reception hall, sitting room, parlor, dining room, kitchen, store room, one bath room and six chambers or single bedrooms; and on the second floor a hall, two bath rooms and twelve chambers or single bedrooms.
Judgment was given to the effect that though defendant was then engaged in erecting a hotel building as described in the petition, it did not infringe the restrictions contained in the deed. We believe the court properly disposed of the case as the restrictions sought to be invoked may not be implied, and there appears to be no inhibition contained in the covenant against the proposed hotel. It is entirely clear that the building described as being erected by defendant does not fall within the express inhibition contained in the deed. The law as a rule favors the free and untrammeled use of real property. Restrictions of the fee in conveyances are therefore regarded unfavorably and strictly...
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