Conrad v. Boogher
| Decision Date | 06 May 1919 |
| Citation | 214 S.W. 211,201 Mo.App. 644 |
| Parties | FREDERICK E. CONRAD, Respondent, v. NINA C. BOOGHER, et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. George H. Shields, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Percy Werner for appellants.
Boogher & White of Counsel.
(1) This being an equitable suit, this court will, under the well-established procedure in equity, try the case de novo. (2) The court erred in admitting testimony as to the use to which one of the defendants, a physician, put the porte-cochere. If the building, as it stands, constitutes a violation of the covenant, or, on the other hand, does not constitute such a violation, it continues to be such regardless of its occupancy. It is such even though it be unoccupied; though it be occupied by a lawyer, or a merchant. And it is immaterial whether the lawyer or the merchant uses the structure for storing an automobile. It certainly needs no citation of authorities in support of this proposition. The court below gave more or less weight to this evidence--to the fact that when Dr. Boogher's automobile was not in use, it was kept in the lower part of the structure objected to, and the error of the trial court was a prejudicial one. (3) Such restrictions as are involved here are to be construed strictly in favor of the free use of property unless the context of the instrument discloses an intention to the contrary. Kitchen v. Hawley, 150 Mo.App. 497 505; Thompson v. Langan, 154 S.W. 513; 172 Mo.App 82-3; Sanders v. Dixon, 114 Mo.App. 229, 252-3. All doubts are to be resolved against the restrictions and in favor of the free and unrestricted use of the property. Johnson v. Jones, 244 Pa. 386. "Whether they would tend to beautify the general neighborhood depends entirely upon taste, and that is not a question for discussion." Id. The burden is on plaintiff to show conclusively that the covenant has in fact been broken. Kitchen v. Hawley, 150 Mo.App. 497, 505; Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. 715, 722, 724; Forsee v. Jackson, 192 Mo.App. 408, 182 S.W. 783, 785, col. 1; Reed v. Hazard, 174 S.W. 111. 187 Mo.App. 547. (4) The decree is inequitable--it bears against the defendants out of all proportion to the benefits to plaintiff. It destroys the home of the one to gratify the caprice of the other. Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. 715, 720, 724; Schopp v. Schopp, 162 Mo.App. 558, 654-5. (a) If plaintiff is entitled to any decree then on the record it should go no further than to require the elimination of the hanging doors of the porte-cochere. Bailey v. Culver, 84 Mo. 531, 539-40; Thompson v. Langan, 172 Mo.App. 88. (b) If the court grants equitable relief, the decree should be as moderate as is consistent with effectually correcting the mischief. St. Louis Dep. Bank of Kennett, 101 Mo.App. 395; Forsee v. Jackson, 192 Mo.App. 408, 182 S.W. 783. (5) Plaintiff was guilty of laches. After learning the intention of defendants with respect to the structure to be erected, in an amicable interview with them, he acquiesced and waited until the building was nearly completed without further objection until filing suit. St. Louis Deposit Bank v. Kennett, 101 Mo.App. 370, 397. Troll v. St. Louis, 257 Mo. 626, 659, 660-62. The evidence also points strongly to the plaintiff's acquiescence in the course pursued by defendants. See the Kennett case, next above, 101 Mo.App. 398-400.
Harry H. Haeussler, for respondent.
(1) In equity cases the appellate court has jurisdiction to review the facts as well as the law, but the hearing on appeal is not a trial de novo. The appellate court will consider the evidence from the standpoint most favorable to the successful party below, especially where the evidence is presented in narrative form. Walker v. Dobbins et al., 152 Mo.App. 270; Insurance Co. v. McDearmon, 133 Mo.App. 671; Bank v. Russell, 181 Mo.App. 698; Sanders v. Dixon, 114 Mo.App. 229 (cited by appellants). (2) The conditions and restrictions contained in the trust agreement should be interpreted in the light of the facts existing when the restrictions were imposed and the words used should be given their generally accepted meaning at the time of the execution of the trust agreement. Sanders v. Dixon, 114 Mo.App. 229. (3) It is not necessary in order to maintain an action to restrain the violation of building restrictions by a property owner, that he be notified, prior to the completion of the structure, that its erection will constitute a violation of the restrictions where the deed conveying the property notified him of the existence and character of such restrictions. Compton Hill Imp. Co. v. Strauch, 162 Mo.App. 76. (4) Covenants in the nature of restriction on the use of the fee are valid, when reasonable and within the policy of the law, and equity will enforce them. The restrictions must be observed whether their nonobservance will inflict injury or not and a grantee in a deed containing such restrictions cannot substitute others for what has been agreed upon. St. Louis Save Dept. Co. v. Kennet Est., 101 Mo.App. 370; Forsee v. Jackson, 192 Mo.App. 408; Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. 714; Compton Hill Imp. Co. v. Strauch, 162 Mo.App. 76.
This is a suit in equity whereby it is sought to restrain the defendants from maintaining a certain structure alleged to consist of a garage with a room above the same, upon a lot of ground belonging to the defendant Nina C. Boogher, wife of her co-defendant Dr. Frank Boogher; it being alleged that said structure is located within five feet of the line of plaintiff's adjoining lot in violation of certain building restrictions. The trial court entered a decree in favor of plaintiff, ordering defendants to remove the structure and perpetually enjoining and restraining them from constructing or maintaining a similar structure within five feet of the division line of plaintiff's lot. From this judgment defendants have appealed to this court.
The lot belonging to defendant Nina C. Boogher is situated in the city of St. Louis, near the western limit thereof, and is designated as lot No. 1 of block 7 of "Parkview," a subdivision lying partly in the city of St. Louis and partly in St. Louis County. It fronts on the south line of Berlin avenue, a curved street, and is bounded on the east by Skinker road. The lot immediately west thereof is owned by the plaintiff who has a dwelling house thereupon. Defendant Nina C. Boogher acquired her lot in June, 1914, and shortly thereafter defendants erected a dwelling house upon the same. The record shows that the Beredith Realty Company, a corporation, from which plaintiff and defendant Nina C. Boogher derive title to their respective lots, subdivided this Parkview tract, platted the property by plat duly filed of record, and executed to certain persons a trust agreement, likewise duly recorded, whereby certain building restrictions were imposed upon each of the lots in the subdivision for the benefit of the owners of all of the other lots therein. Defendant Nina C. Boogher acquired her lot subject to these restrictions, among which are the following:
"And neither said Realty Company, its successors or assigns, owner or owners of any of said lots, in said subdivision shall or will at any time . . . erect any building or erection or construction of any character, except a division fence or porte-cochere or porch within five (5) feet from the side lines of said lots, without the written consent of the owners of the lot adjoining on the side." (Italics ours).
At the time of the erection of their dwelling house upon the lot of Nina C. Boogher, the defendants erected upon the western side of the lot and adjoining the main portion of their residence building the structure here in question, the west wall thereof being within less than five feet of the east line of plaintiff's lot. The testimony touching the matter together with photographs in evidence, shows that this alleged objectionable structure is of brick construction, the west wall of the main building being utilized as one wall thereof. The lower part thereof, alleged by plaintiff to be a garage, has a brick wall at the west with four small windows therein; the north and south ends consisting of large openings extending practically, if not entirely, from the main house wall to the western wall of the structure. A granitoid driveway extends from Berlin avenue through these openings, and, according to the testimony, continues a distance of twenty-five or thirty feet beyond the south opening into the rear yard of the premises. These openings are provided with large "hanging" doors, which, it is said, are detachable and removable, the upper part thereof being mainly of glass. When these doors are swung back and fastened on the inside, or removed, the lower part of the structure has the appearance of a covered driveway. And a door leads from the main building into this driveway, or so-called porte-cochere. The evidence shows that Dr. Boogher, who is a physician and is frequently called out at night, customarily leaves his automobile standing in this place at night and likewise during the day when it is not in use. And the evidence further shows that the defendants have no other place upon the premises for housing their automobile, or, as stated by appellant's learned counsel, defendants "have no other garage." And the testimony shows that in inclement weather the doors at the north and the south openings are closed. The testimony is to the effect, however, that the defendants "have none of the ordinary appurtenances of a...
To continue reading
Request your trial