Evans v. Roth

• Citation: 201 S.W.2d 357,356 Mo. 237
• Decision Date: 21 April 1947
• Docket Number: 40189
• Parties: Rella B. Evans, Clementina D. Green, Mary D. Bass and Gertrude Poe, Appellants, v. H. B. Roth and Myrtle Ann Roth
• Court: Missouri Supreme Court

201 S.W.2d 357

356 Mo. 237

Rella B. Evans, Clementina D. Green, Mary D. Bass and Gertrude Poe, Appellants, v. H. B. Roth and Myrtle Ann Roth

No. 40189

Supreme Court of Missouri

April 21, 1947

Appeal from Boone Circuit Court; Hon. Frank Hollingsworth Special Judge.

Reversed and remanded (with directions).

Clark Boggs, Peterson & Becker, Howard B. Lang, Jr., and William L. Nelson, Jr., for appellants.

(1) The Court of Appeals erred in holding that a zoning ordinance enacted under the provisions of Art. 12, Chap. 38, R.S. 1939 provides adequate and exclusive relief to a property owner suffering special and irreparable damages by virtue of the violation of the zoning ordinance by another property owner in a case where an application by the violating owner for rezoning has been denied by the zoning authorities and the owner continues to violate the ordinance. The court misconstrued the statute and the zoning ordinance. Fidelity Trust Co. v. Downing, 68 N.E.2d 789. (2) The court erroneously held that the zoning ordinance affords adequate legal relief which denies a court of equity of jurisdiction. Hanson v. Neal, 215 Mo. 256, 114 S.W. 1073; Priest v. Oehler, 328 Mo. 590, 41 S.W.2d 787. (3) The rights given to individual property owners by the statute are ignored by the Court of Appeals decision. Sec. 7414, R.S. 1939; DeBlasiis v Bartell, 18 A.2d 478; Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30; Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852; Momeir v. McAlister, 193 S.C. 422, 8 S.E.2d 737; Fitzgerald v. Gerard Holding Co., 106 Conn. 475, 138 A. 483. (4) A court of equity has an inherent right to prevent the special and irreparable injuries pleaded and shown in this record. State ex rel. Chicago, B. & Q. Railroad Co. v. Woolfolk, 269 Mo. 389, 190 S.W. 877; Woodward v. Woodward, 148 Mo. 241; Weldon v. East Oak St. Bldg. Corp., 70 F.2d 377; Fidelity Trust Co. v. Downing, 68 N.E.2d 789. (5) The ruling of the Court of Appeals is in conflict with the ruling of this court in Taylor v. Schlemmer, 183 S.W.2d 913, wherein this court granted injunctive relief for the violation of a zoning ordinance causing special and irreparable injuries. Taylor v. Schlemmer, 183 S.W.2d 913; Superior Press Brick Co. v. St. Louis, 155 S.W.2d 290; Hernreich v. Quinn, 168 S.W.2d 1053. (6) The trial court erred in holding that respondents' building was not designed and being used as an apartment house in violation of the city zoning ordinances and erred in dismissing appellants' bill, because the undisputed evidence disclosed that it was so designed and being so used, to the special detriment of appellants. Taylor v. Schlemmer, 183 S.W.2d 913. (7) The trial court erred in admitting parol testimony to prove what was meant by the term "apartment" or "apartment house" used in the zoning ordinance because the court must arrive at the legislative intent from the language of the ordinance, and the opinion and construction of citizens generally is not admissible to prove the legislative intent. Hannibal Trust Co. v. Elzea, 315 Mo. 485, 286 S.W. 371; Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65; Crisman v. Terminal Railroad Assn. of St. Louis, 157 S.W.2d 229; Marler et ux. v. Marler's Estate, 104 S.W.2d 73.

George C. Miller and William H. Sapp for respondents.

(1) The respondents' house, especially after it had been remodeled by the building inspector, was not an apartment house and never has been used as such. And since the appellants did not attack the constitutionality of the Zoning Ordinance, they cannot complain of the dismissal of their petition, because the Zoning Ordinance provides an exclusive and adequate remedy for the determination of the question as to whether the use made of the building was lawful or not. Chap. 28, Revised Ordinances of Columbia, 1932; Art. 12, Chap. 38, R.S. 1939; Superior Press Brick Co. v. St. Louis, 155 S.W.2d 290; Hernreich v. Quinn, 168 S.W.2d 1054. (2) There being a dispute as to which of two uses the rooms (first and second floors) were adapted and actually used for, it was proper for the court to admit the testimony of experienced real estate men and others in Columbia to aid it in determining the use that was uniformly made of similar rooms (without cooking facilities) in said city. And especially since the Ordinance makes the actual use of such rooms one of the determining factors when the question of multiple uses is in issue. Sec. 1156, Revised Ordinances of Columbia, Missouri, 1932; Godfrey v. Hampton, 148 Mo. 157; Sanders v. Dixon, 114 Mo.App. 229. (3) Even if such testimony were improperly admitted, its admission did not constitute reversible error. Such testimony may be disregarded by this court. Sec. 140, p. 395, Laws 1943. (4) The appellants should have requested the Building Inspector to change his decision and stop the use of the property they objected to, and upon his refusal to do so to appeal in order to give the Board of Adjustment an opportunity to apply the "practical difficulty clause." Sec. 7418, R.S. 1939; In re Botz, 159 S.W.2d 367; Superior P. Brick Co. v. St. Louis, 155 S.W.2d 290; Hernreich v. Quinn, 168 S.W.2d 1054. (5) The remedy provided by the zoning law is adequate to correct any violation of the zoning law, and especially a use violation of an approved house, which has been adjudged or determined to be proper and lawful by the Inspector and/or Board of Adjustment. Women's Christian Ass'n. v. Brown, 190 S.W.2d 900; Superior P. Brick Co. v. St. Louis, 155 S.W.2d 290; Hernreich v. Quinn, 168 S.W.2d 1054. (6) The majority opinion kept in view the rights of adjacent property owners and at the same time preserved the scheme prepared by the legislature for inexpensively and speedily determining disputes by the property owners through the agency of the Building Inspector and the Board of Adjustment. See cases cited above. (7) Taylor v. Schlemmer, 183 S.W.2d 913, is not helpful to appellants nor does it hold that a court of equity has inherent power to take jurisdiction of any and all cases. (8) The trial court and both opinions of the appeal judges properly found that the remodeled house was a two-family dwelling. The trial judge saw and examined the house, saw and heard the witnesses as they described the house and how it had been used, and thereupon properly ruled that the building was a two-family dwelling and had not been used as an apartment house. Section 1156 of Zoning Ordinance. (9) The use made by "roomers" of a two-family dwelling cannot convert it into an apartment house. Section 1156 of the Zoning Ordinance. (10) A family in a two-family dwelling may occupy parts of two or more floors. (11) The respondents, acting under the instructions of the city officials limited the privileges of the occupants to those enjoyed by roomers, and thereby removed all doubt as to the character of their use. Sec. 7419, R.S. 1939. (12) The use of a telephone, door directory and/or ice box did not convert house into an apartment building, and at most raised a "practical difficulty problem" for the consideration of the Inspector and Board of Adjustment. Authorities cited under (4). (13) The appellants failed to offer testimony showing special damages to their property.

OPINION

Leedy, J.

By this action plaintiffs seek an injunction to restrain defendants from continuing the use of their building as an apartment house in alleged violation of the zoning ordinance of the City of Columbia. Decree for defendants, and plaintiffs appealed to the Kansas City Court of Appeals which, by a divided court, affirmed the decree. On plaintiffs' application to this court, the cause was transferred here. Having been briefed on the merits and decided by the Court of Appeals, it will be determined in this court as on original appeal. [See Rule 2.06, and Carr Missouri Civil Procedure sec. 2086.]

In 1935 the City of Columbia adopted a comprehensive zoning ordinance. By its terms the city was divided into seven districts for the purpose of regulating and restricting the erection, alteration, repair and use of structures and land, the density of population, etc. Sec. 1160 of the ordinance, relating to District A, or First Dwelling District, specified as a particular use permitted therein "Dwellings", and by Sec. 1156 defined "dwelling" as "A building arranged, intended, designed for, or occupied by not more than two families." The premises in question are in the "First Dwelling District", and hence restricted to occupancy by not more than two families.

In March 1940, the property, then a vacant lot, was owned by one Trowbridge and his wife. They applied to the City Planning and Zoning Committee to re-zone the lot to permit the erection of an apartment house, which was denied March 26 1940. They then applied for a building permit for a structure denominated a "duplex", which was denied April 6. On April 8, they sought reconsideration of their application to re-zone, but were unsuccessful. On June 5, they were issued a building permit for the erection of a 12 room duplex, but on June 17, the City Engineer's office wrote a letter to Mr. Trowbridge calling attention to the fact that plans [subsequently?] submitted called for a third complete unit, on the basement or terrace level, in addition to the two family facilities on the other floors, making a total of 17 rooms, and demanded compliance with the building permit. Such permit authorized the construction of a brick and tile two story duplex, or two family dwelling, containing 12 rooms. In 1940, while construction was in progress, the acting City Engineer and the City Attorney inspected the building and found that, contrary to the plans, two kitchens were being installed on each of the floors above the ground level; that unauthorized apertures had been constructed in the north wall...