Matthews v. First Christian Church of St. Louis

Decision Date14 October 1946
Docket Number39827
Citation197 S.W.2d 617,355 Mo. 627
PartiesLeonard and Elvira H. Matthews, Jeanette Miller Shults and Maryland Avenue Property Owners Association v. First Christian Church of St. Louis, a Corporation, and R. A. Harmon, Appellants
CourtMissouri Supreme Court

Rehearing Denied November 11, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Wm. K Koerner, Judge.

Affirmed.

Lashly Lashly, Miller & Clifford, Jacob M. Lashly, Arthur V. Lashly and Oliver J. Miller for appellants.

(1) A restriction as to use of property is not favored by the law. Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489; Matthews Real Estate Co. v. Natl. Printing & Engraving Co., 330 Mo. 190, 48 S.W.2d 911; Williams v. Carr, 213 Mo.App. 223, 248 S.W. 625; St. Louis Safe Deposit & Savings Bank v. Kennett Estate, 101 Mo.App. 370, 74 S.W. 474. (2) Because injunctive relief for the enforcement of a restrictive covenant as to the use of land should be denied where, as here, it has ceased to have any beneficial value, the circumstances having so changed as to defeat the original purpose of such a covenant, or where, as here, plaintiff's right, if any, to the enforcement thereof has been waived. Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489; Matthews Real Estate Co. v. Natl. Printing & Engraving Co., 330 Mo. 190, 48 S.W.2d 911; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 140 S.W.2d 545; Pickel v. McCawley, 329 Mo. 166, 44 S.W.2d 857; St. Louis Safe Deposit & Savings Bank v. Kennett Estate, 101 Mo.App. 370, 74 S.W. 474; Nashua Hospital Assn. v. Cage, 85 N.H. 335, 159 A. 137; Pulitzer v. Campbell, 147 Misc. 70, 262 N.Y.S. 743; 14 Am. Jur., p. 644. (3) Judicial enforcement of said restriction by enjoining the use of said lots 17 and 18 for church purposes, as prayed for in plaintiff-respondents' petition, would deny defendant-appellant First Christian Church the equal protection of the law and due process of law in violation of the State and Federal Constitution. Sec. 2, Art. 1, Mo. Constitution, 1945; Sec. 10, Art. 1, Mo. Constitution, 1945; Sec. 1, Amend. XIV, Federal Constitution; State ex rel. Roman Catholic Bishop v. Hill, 59 Nev. 231, 90 P.2d 217; State of Ohio ex rel. Synod of Ohio of the United Lutheran Church in America v. Joseph, 139 Ohio 229, 39 N.E.2d 515; State ex rel. Westminster Presby. Church v. Edgecomb, 108 Neb. 859, 189 N.W. 617; Duane v. Merchant's Legal Stamp Co., 231 Mass. 113, 120 N.E. 370; Central Kentucky Natural Gas Co. v. Railroad Comm., 37 F.2d 938. (4) Section 3 of Ordinance 35003, as amended by Ordinance 35009 of the City of St. Louis, authorizes the use of said lots 17 and 18 by defendant-appellants for church purposes.

Martin, Peper & Martin, William McChesney Martin, Christian B. Peper and Malcolm W. Martin for respondents.

(1) Where property as here is restricted by deed to use for single family residences, apartments and commercial structures, the use of such property for church purposes violates such deed restrictions and will be enjoined in equity; and the plaintiffs enforcing such restrictions need not show specific detriment but may stand upon the restrictions as such. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Britton v. School District of University City, 328 Mo. 1185, 44 S.W.2d 33; Proetz v. Central District of Christian and Missionary Alliance, 191 S.W.2d 273; Hisey v. Eastminster Presbyterian Church, 130 Mo.App. 566, 109 S.W. 60; Meder v. Wilson, 192 S.W.2d 606; Noel v. Hill, 158 Mo.App. 426, 138 S.W. 364; Andrews v. Metropolitan Building Co., 349 Mo. 927, 163 S.W.2d 1024. (2) A mere failure on the part of plaintiffs to take legal action against minor prior violations does not constitute abandonment of the right to enforce such deed restrictions particularly where, as here, plaintiffs made protests which were effective in stopping said prior violations. Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489; Britton v. School District of University City, 328 Mo. 1185, 44 S.W.2d 33; Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398; Hickey v. Greengard, 176 S.W.2d 661; Thompson v. Langan, 172 Mo.App. 64, 154 S.W. 808; Scharer v. Pantler, 127 Mo.App. 433, 105 S.W. 668; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529. (3) In order to prevent the enforcement of the deed restrictions in this case the burden is upon the defendants to prove that the character of the neighborhood has so radically changed as to render the restrictions of no value. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Britton v. School District of University City, 328 Mo. 1185, 44 S.W.2d 33; Proetz v. Central District of Christian and Missionary Alliance, 191 S.W.2d 273; Noel v. Hill, 158 Mo.App. 426, 138 S.W. 364; Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398. (4) No clause of the Missouri or the Federal Constitution affects the granting by a court of equity of an injunction prohibiting the violation of deed restrictions. (5) Section 3 of Ordinance 35003 as amended by Ordinance 35009 of the City of St. Louis, is merely permissive of church use in the absence of applicable deed restrictions.

Hyde, P.J. All concur except Clark, J., absent.

OPINION
HYDE

Injunction against use of property for a church, found to be in violation of covenants restricting use of land, from which defendants have appealed. Plaintiffs alleged damages in excess of $ 10,000.00 and defendants raised constitutional questions by answer.

The restrictions were made in 1892 for Block 3894 in St. Louis, bounded by Maryland Avenue on the north, Lindell Boulevard on the south, Taylor Avenue on the east and Euclid Avenue on the west. This controversy involves only the lots on the south side of Maryland. There were 16 separate family residences on them, all occupied by the owners. There was only one rented house, the owner of which lived across the street. The houses were from 30 to 40 years old but were well kept and some had been modernized. The original restrictions applicable to the lots fronting on Maryland were in part as follows:

". . . But one residence building shall be erected or placed upon each of said lots and such building shall never be used or occupied for any purpose except for that of private residence; nor shall any part or portion thereof ever be used or occupied except solely as a residence; nor shall such building be arranged or ever used or occupied as flats; nor shall said lots or any portion thereof ever be used for trade, manufacture, or business of any kind whatever."

". . . After 25 years from the date of this deed, the owners of the majority or greater part of the frontage on Maryland Avenue, within said block, may by written consent . . . alter, modify, or repeal, so far as the lots fronting on Maryland Avenue in said blocks are concerned, any or all of the foregoing restrictions . . ."

These restrictions were construed and enforced in Noel v. Hill, 158 Mo.App. 426, 138 S.W. 364. In 1926, restrictions were removed from the lot at the west end of the block to permit the construction of a business building. In 1928, the restrictions on all the lots were amended to change the building line and also further as follows:

"The other provisions of said restrictions shall be amended so as to allow the erection of or alteration to buildings on said lots so that said buildings and lots may be used for retail mercantile business and apartments."

There were double street car tracks in Maryland Avenue. Two business buildings have been built at the west end of the block on the south side of the street. They were occupied by four stores, the Busy Bee candy store, a ladies dress shop, a carpet and rug salesroom, and a fur store. There were other stores on the north side of Maryland Avenue (which was not subject to these restrictions) at the west end of the block, occupied by an art shop, a grocery, a millinery store, a shoe store and a bar. These buildings were about 30 years old. There were two nine story apartment buildings at the east end of the block on the north side and there was a drug store and a beauty shop in these buildings. The rest of the north side of Maryland Avenue was in single family residences. In the next block west, extending to Kingshighway, there was one of the best shopping districts in the city. On the north side, across Euclid Avenue there was a large hotel. There were other churches and schools, and also apartments, hotels and stores, in the neighborhood. A complete description of the surrounding territory may be found in Proetz v. Central District of Christian and Missionary Alliance (Mo. App.), 191 S.W.2d 273. The zoning ordinance of the city, which was adopted in 1926, permitted business buildings at the end of the block and restricted the rest to one and two family dwellings. Thus it has been the zoning ordinance which has kept business buildings and large apartments out of this block since 1928. This ordinance, however, authorized a church or school in such a residence district.

Defendants purchased a large three story brick residence in the middle of the restricted block and commenced to use it as a church without making any exterior changes except to put up a sign. It occupied two lots with a total frontage of 100 feet. The evidence showed that a considerable number of people congregated for church services on Sundays and Thursdays; that this filled the street with parked cars and that music and singing in the church could be heard during the services. There was also evidence that this use of the property would cause a decline in value of the property in the block for residence purposes of from 25 to 30 per cent, and would materially affect the street as a residence district from the standpoint of its desirability as a place to...

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