Bolin v. Tyrol Inv. Co.

• Citation: 160 S.W. 588,178 Mo. App. 1
• Parties: BOLIN v. TYROL INV. CO.
• Decision Date: 04 November 1913
• Court: Court of Appeal of Missouri (US)

160 S.W. 588

178 Mo. App. 1

BOLIN v. TYROL INV. CO.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

Rehearing Denied November 18, 1913.

1. COVENANTS (§ 119) — ACTIONS ON — EVIDENCE — ADMISSIBILITY.

In an action to enforce a building covenant relating to a particular subdivision, evidence of the class of property outside such subdivision is immaterial.

2. COVENANTS (§ 49) — REAL PROPERTY COVENANTS — CONSTRUCTION.

While the tendency of courts is to disregard restrictive covenants on realty, yet such covenants, like all contracts, should be interpreted as nearly as possible according to the obvious intent of the parties.

3. COVENANTS (§ 103) — REAL PROPERTY COVENANTS — CONSTRUCTION — "DWELLING HOUSE."

Where all of the lots of a subdivision were conveyed subject to a covenant that the owner should not construct or allow to be constructed more than one dwelling house on each 50-foot lot, one who purchased a lot with knowledge of the covenant could not erect a flat building thereon, accommodating a number of families under one roof in separate apartments; the purpose of the covenant being to insure the residential character of the neighborhood, and the expression "dwelling-house" is equivalent to "dwelling," meaning the home of one family.

Allen, J., dissenting.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by Minnie T. Bolin against the Tyrol Investment Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Respondent here, proposing to erect an apartment house on a certain lot in what is known as Chamberlain Park, a subdivision of the city of St. Louis, the apartment house to be a three-story brick structure, containing six separate apartments, separate residences or dwellings for six separate families, appellant, a lot owner in the subdivision, instituted this action to restrain the erection of the building, claiming that its erection would be in violation of certain restrictions contained in the deeds under which respondent and all other owners in the subdivision hold the property upon which the structure is proposed to be erected and which restrictions are to remain in force up to the 31st day of December, 1920. The restrictions directly pertinent to the consideration of this case are (1) that no lot owner in the subdivision "shall construct or allow to be constructed in the premises above described any dwelling house less than two stories in height; (2) shall construct or allow to be constructed more than one such dwelling on each fifty feet front of said lot." There are other restrictions in the deed which are not here so directly involved, and which it is not claimed would be violated by the structure proposed to be erected, but we set them out by way of illustrating the character attempted to be fixed upon the subdivision. They are as follows: That no lot owner in the subdivision "(3) shall construct or allow to be constructed thereon any dwelling to cost less than $4000 in cash; nor locate or erect such dwelling nearer than thirty feet to the line of the street on which such dwelling fronts; (4) shall construct or allow to be constructed any stable, shed or outhouse nearer to any public driveway than 100 feet; (5) shall construct or allow to be constructed or erected or to exist any nuisance or any livery stable or manufacturing establishment of any kind on said premises; (6) shall construct or allow to be constructed, used or occupied any grocery store, bar room or business place for the bargain and sale of any kind of merchandise on said premises."

The answer admitted that it was the intention of respondent, defendant below, to erect on the lot, which has a frontage of about 200 feet on Etzel avenue where it runs into Page avenue and about 200 feet frontage on Belt avenue, "a beautiful and costly building to be for family living purposes exclusively and so constructed as to have the entrance on Etzel and an entrance or exit at the rear of the building facing the alley; that plaintiff * * * notified and demanded of defendant not to erect any habitation other than a single private residence constructed for one family only and not to erect the aforesaid building as being in alleged violation of certain alleged restrictions thereon." Setting out the restrictions as above, defendant denies that the proposed building violates any of them. It is further set out that even if the alleged restrictions are violated by the erection of the proposed building, they are inapplicable for the reason that defendant's lot is on a projecting corner of the Park, on an exposed and public corner surrounded and abutted by public streets maintaining heavy and noisy traffic, including a noisy and busy street car line and improved, unrestricted property consisting of business houses and stores and numerous small, cheap houses, many on the same side of the street and in the same block in which is the defendant's lot, and that so far as concerns the defendant, the alleged restrictions, if violated by the building it proposes to erect, are oppressive and unconscionable and thereby inapplicable, inequitable and unenforceable; that the restrictions will expire December 31, 1920; that when in 1887 the restrictions were imposed and for some time thereafter, the section was open country or built up with residences but that the district is now fully made up and largely crowded with small flats and cheap stores, particularly around the point upon which respondent is erecting its building; that if respondent is compelled to erect no other building for living purposes than a single, private, residence, constructed for one family only, soon after it is erected and long before such a building can live its usual and rightfully anticipated life, the restrictions will have expired and all the surrounding and abutting property will have further developed or disintegrated into cheap residence and business property and leave any such new and costly building as required by plaintiff undesirable, inappropriate and burdensome upon the owner and deprive respondent of its reasonable and rightful and fullest legitimate use of the land.

The new matter in this answer was replied to and the cause tried before the court as in equity.

Without going into the testimony in detail, it is sufficient to say that that introduced on the part of appellant showed that what is known as Chamberlain Park, comprising four full city blocks and the larger part of three other blocks, these blocks cut up into lots, there being over two hundred lots in the subdivision, judging by the plat in evidence, had been in great part built up and occupied for the most part by costly residences, a few of them of the minimum valuation required, several of them valued at from $25,000 to $35,000; that it was strictly and entirely a residence district or Place, the buildings private residences, occupied by single families, with one exception, namely, a hotel or boarding house, which it appears had been erected over the protest of the other property owners, and is the building involved in the decision of our court in Kitchen v. Hawley, 150 Mo. App. 497, 131 S. W. 142. There is no dispute over the fact that when the property owners of Chamberlain Park were advised of the intention of respondent here to erect the building, they promptly notified the officers of respondent that they would contest their right to erect it as being in violation of the provisions of the deed under which respondent held its property, and that if they insisted upon going on with their plans, an injunction would be applied for. Respondent announcing its intention to proceed with the erection of the building and beginning to excavate for that purpose, this suit was instituted to enjoin the further prosecution of the work.

It was in evidence that on the other side of Etzel and Page avenues but outside of Chamberlain Park, the neighborhood was thickly settled with a miscellaneous class of buildings, some cheap, others of a better class; stores and business houses of different kinds were there; a line of street cars ran along Page avenue, but beyond the hotel or boarding house referred to in Kitchen v. Hawley, supra, no buildings which were thought to violate the restrictions had been erected within the boundaries of Chamberlain Park. The testimony introduced on the part of defendant, respondent, was to the effect that the building proposed to be erected was of the kind set out in the answer, that is to say, what are called flats or an apartment house, with a single entrance in the center, fronting Etzel avenue, where Page avenue runs into it, but that it was to be composed of six different and distinct apartments or dwellings, each adapted to the use of a family and separated from each other in the manner usual in such structures.

At the conclusion of the case, the trial judge, sitting as chancellor, dismissed the suit. It is from this that plaintiff below, having filed her motion for new trial and excepting to its being overruled, has duly perfected appeal to this court, assigning as error the action of the court in dismissing the case.

A. M. Frumberg and A. R. Russell, both of St. Louis, for appellant. E. Caplan and Rassieur, Kammerer & Rassieur, all of St. Louis, for respondent.

REYNOLDS, P. J. (after stating the facts as above).

This case was determined in the lower court entirely upon the question as to whether the erection of the proposed building was in violation of the restrictions covering the subdivision, which we have set out,...