Zinn v. Sidler

Decision Date18 July 1916
Citation187 S.W. 1172,268 Mo. 680
PartiesCHARLES E. ZINN et al. v. BALTHAZAR SIDLER et al., Appellants
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.

Reversed and remanded (with directions).

Cook & Gossett, Beardsley & Beardsley and Stubenrauch & Hartz for appellants.

(1) The mere designation upon the plat of a subdivision of land, or addition, whether within or without a city, of a plain line or lines, and writing on the plat near or along such line or lines the words "Building Line" is too indefinite and indeterminate, and is not a sufficient expression of a positive and perpetual restriction upon the use of the land to be binding as a restriction of the ordinary and usual exercise of ownership and enjoyment of land. Claims of restriction upon the right to ordinary enjoyment of property should be unfavorably and strictly construed. Kitchen v Hawley, 150 Mo.App. 497; Scharer v. Pantler, 127 Mo.App. 432; Oil Co. v. La Tourette, 19 Okla 92; McMurtry v. Phillips, 103 Ky. 308; Minister v. Madison Amus. Co., 214 N.Y. 267; Van Duyn v. H S. Chase & Co., 149 Iowa 222; Jones v. Williams, 56 Wash. 588; Johnson v. Shelter Island Assn., 122 N.Y. 330. (2) If the platter had so intended to positively restrict, he should and naturally would have said so expressly. King v. Trust Co., 226 Mo. 357. Or the platter may have made his plat as he did intending to put restrictions in his deeds, to make the building line binding as a restriction for some reasonable time and in some reasonable manner, and then abandoned such idea and immediately sold the lots as free and clear of all incumbrances, claims, servitudes, etc. Duncan v. Railroad, 85 Ky. 525; Brown v. Wrightman, 90 P. 467; Sec. 2793, R. S. 1909. (3) If a building restriction in the nature of a plan of improvement is disregarded, or suffered to be disregarded, to a substantial extent by the grantor, originator of the same, or those thereafter claiming under him, it is an abandonment of, or such inconsistency concerning the same, that owners of other lands are not bound by such restriction. Improvement Co. v. Towers, 158 Mo. 282; Towers v. Compton Hill Co., 192 Mo. 379; Thompson v. Langan, 172 Mo.App. 64; Hawes v. Favor, 161 Ill. 440; Duncan v. Railroad, 85 Ky. 525; Brown v. Wrightman, 90 P. 467.

Smart & Strother, Fyke & Snider and E. E. Steele for respondents.

(1) The plat of McKinney Heights was recorded in 1886, and vested in the City of Kansas (now Kansas City), the fee of the streets and alleys thereon shown and dedicated to public use. R. S. 1879, secs. 6569-6575; Cameron v. Stephenson, 69 Mo. 372. By the extension of the city limits in 1897, McKinney Heights became a part of Kansas City. Kansas City Charter 1898, sec. 2, art. 1; 1 R. S. 1889, sec. 1880, as amended by Laws 1895, 54; R. S. 1909, sec. 9743. (2) The deeds, under which appellants claim title to their land, describe it by lot and block number on the plat of McKinney Heights. The plat itself, therefore, with all its notes, lines, descriptions and land marks is as much a part of such deeds as if it had been set out in the face of the deeds themselves. Whitehead v. Ragan, 106 Mo. 234; St. Louis v. Mo. Pac. Ry. Co., 114 Mo. 21; Campbell v. Wood, 116 Mo. 201; Whitehead v. Atchison, 136 Mo. 495; Caruthersville v. Huffman, 262 Mo. 375; Lindsay v. Smith, 178 Mo.App. 189; Simpson v. Mikkelsen, 196 Ill. 575; Smith v. Young, 160 Ill. 163. (3) The "building line," marked as such on the plat of McKinney Heights, with its distance from the adjacent streets plainly indicated in feet in the same manner as all other distances shown on the plat, is perfectly plain and unambiguous in meaning and is a restriction upon the manner of use and improvement of the lots shown on the plat. Simpson v. Mikkelsen, 196 Ill. 575; King v. Trust Co., 226 Mo. 351; Yeomans v. Herrick, 178 Mo.App. 274; Tallmadge v. Bank, 26 N.Y. 105. (4) The restriction, although unlimited as to time, does not create a perpetuity, but on the contrary is a valid restriction which equity will enforce at the suit of any party entitled to the benefit of it. Stevens v. Realty Co., 173 Mo. 511; Noel v. Hill, 158 Mo.App. 444; Tobey v. Moore, 130 Mass. 448. (5) The appellants having erected their building in violation of the building line, pending the suit, the mandatory injunction requiring the removal of such part of it as violated the restriction was proper. Meriwether v. Joy, 85 Mo.App. 634; Fete v. Foerstel, 159 Mo.App. 75.

OPINION

WALKER, J.

This is a suit in equity brought in the circuit court of Jackson County at Kansas City to enjoin defendants from erecting a building on a lot in McKinney Heights in said city.

A restraining order was granted and later dissolved. After its dissolution and before the trial, defendants erected a building on said lot. In September, 1912, a trial was had resulting in a judgment for plaintiffs, requiring defendants, within ninety days thereafter, to remove so much of said building as projected over the building line on the lot, and restraining defendants from erecting or maintaining a building on the lot nearer the adjacent streets than twenty feet in one instance and fifteen feet in the other -- the lot being on a corner. Jurisdiction to make further orders was retained to enforce compliance with the judgment then rendered. From this judgment the defendants have appealed.

In June, 1886, Marshall P. Wright owned a tract of land of thirty-one acres adjacent to the corporate limits of Kansas City. He laid it out in lots and blocks and streets and alleys, dedicating the latter to public use, acknowledged the plat and recorded the same, as required by the statute, designating the addition as "McKinney Heights." In 1897 it was made a part of Kansas City.

Across the lots and blocks on this plat, twenty feet from the street lines and parallel thereto -- except along St. John Avenue, where the distance is fifteen feet -- checked or broken lines were drawn designated as "building lines." Defendants' lot, described as "lot 14 of block 4, McKinney Heights," against which this particular proceeding is directed, is situated on the northwest corner of Jackson and St. John Avenues, the former running north and south and the latter east and west. The lot has a frontage of fifty feet on St. John Avenue.

Plaintiffs' lots are in the same block as that of defendants, also fronting on St. John Avenue. Plaintiffs contend that the lines on this plat marked "building lines" are restrictions upon all persons erecting buildings upon any of these lots, and that the action of the defendants in violating same is to plaintiffs' damage and injury in that it tends to depreciate the value of their property and interferes with the uniformity of the location of buildings on said tract or addition, which was intended, and is principally used, for residential purposes.

Defendants, in opposition to this plea, contend that at the time this plat was made and recorded the land platted was outside of the corporate limits of Kansas City and the building lines marked thereon were in no wise mentioned except by marking them on the plat; that neither the acknowledgment to the plat nor any deed conveying the lots therein designated has any reference to same, and that these lines constitute merely a suggestion to owners of property in said addition and have no binding force or effect as a restriction; that they acquired possession of the lot against which this proceeding is directed without any knowledge of the pretended claims or demands of plaintiffs that there was a building line restriction on the property, and that they purchased the same believing it to be unrestricted and unincumbered in any manner; that the enforcement of the restriction would constitute a taking of their property without due process of law. The reply admitted that McKinney Heights when platted was not in the corporate limits of any city or town and that the defendants' title was through mesne conveyances under Wright, who platted the property, but denied all the other allegations in the answer.

In July, 1886, soon after recording the plat, Marshall P. Wright and wife conveyed the entire addition to William McKinney, describing it as follows: "All lots in McKinney Heights, being originally the L. P. Browne tract, consisting of thirty-one acres in the east end of the south half of the northeast quarter of section 34, township 50, range 33, Jackson County, Missouri. The plat of said McKinney Heights being recorded in book B, page , June 17, 1886, to which further reference is hereby made."

January 20, 1887, William McKinney and wife conveyed the addition to Thomas A. Harris, describing it as follows: "All of McKinney Heights [except certain blocks therein named] as the same is marked and designated on plat 5 in the office of the recorder of deeds for the county of Jackson, State of Missouri."

January 28, 1887, Thomas A. Harris and wife conveyed the addition to Calvert R. Hunt, describing it as follows: "All of McKinney Heights, an addition to the City of Kansas, as the same is marked and designated on the plat filed in the office of the recorder of deeds for the county of Jackson, State of Missouri [except certain lots therein named]." At different times subsequent to the conveyance to Hunt deeds were made to different persons to lots in this addition.

McKinney Heights was a residence district before the erection of the building by defendants, and at the time of the trial there were 95 buildings on the addition, including that of defendants, 82 of which conformed to the building lines, the remaining 13 having been built in disregard of same. There was testimony in detail as to the conditions under which the different buildings were...

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