232 S.W. 1024 (Mo. 1921), 22649, Peters v. Buckner

Docket Nº22649, 22650.
Citation232 S.W. 1024, 288 Mo. 618
Opinion JudgeWOODSON, J.
Party NameEDNA M. PETERS et al. v. THOMAS B. BUCKNER, Judge of Circuit Court, et al. THE STATE ex rel. MEADOW PARK LAND COMPANY v. THOMAS B. BUCKNER, Judge of Circuit Court
AttorneyScarritt, Jones, Seddon & North for plaintiffs. Sanford B. Ladd for defendants.
Judge PanelWOODSON, J. Elder, J., concurs; Graves, J., concurs in separate opinion, in which James T. Blair, C. J., and Walker and David E. Blair, JJ., concur; Higbee, J., dissents. GRAVES GRAVES, J. (concurring).
Case DateJuly 08, 1921
CourtSupreme Court of Missouri

Page 1024

232 S.W. 1024 (Mo. 1921)

288 Mo. 618

EDNA M. PETERS et al.

v.

THOMAS B. BUCKNER, Judge of Circuit Court, et al. THE STATE ex rel. MEADOW PARK LAND COMPANY

v.

THOMAS B. BUCKNER, Judge of Circuit Court

Nos. 22649, 22650.

Supreme Court of Missouri

July 8, 1921

Both writs made permanent.

Application for writ of prohibition by Edna Peters and another against Thomas B. Buckner, Judge, and others, and application by the State, on the relation of the Meadow Park Land Company, for writ of mandamus against Thomas B. Buckner, Judge. Writs made permanent.

Sanford B. Ladd for defendants.

(1) The writ of prohibition ought not to issue Rothan v. Railroad, 113 Mo. 142; Railroad v. Inv. Co., 205 Mo. 174; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Ry. Co., 100 Mo. 59; State ex rel. v. Withrow, 108 Mo. 8; State ex rel. v. Scarritt, 128 Mo. 331; Delaney v. Police Court, 167 Mo. 679; State ex rel. v. Riley, 203 Mo. 192; State ex rel. v. Thomas, 278 Mo. 98. (2) The writ of mandamus ought not to issue. Rothan v. Railroad, 113 Mo. 142; Railroad v. Inv. Co., 205 Mo. 174; Williams v. Judge of Cooper Court, 27 Mo. 227; Miltenberger v. St. Louis County Court, 50 Mo. 172; State ex rel. v. Smith, 105 Mo. 9; State ex rel. v. Neville, 110 Mo. 349; State ex rel. v. McKee, 150 Mo. 243; State ex rel. v. Neville, 157 Mo. 394; State ex rel. v. Fort, 180 Mo. 108; State ex rel. v. West, 272 Mo. 313. (3) There was no error in the instruction given by Judge Buckner to the commissioners; it embraced a correct view of the law of this State. Van De Vere v. Kansas City, 107 Mo. 83; Glasgow v. St. Louis, 107 Mo. 204; Funke v. St. Louis, 122 Mo. 138; United States v. Certain Lands, 112 F. 622; Doan v. Cleveland Railroad, 92 Ohio St. 461; Frazer v. City of Chicago, 186 Ill. 480; Bacon v. Walker, 77 Ga. 336; Long v. City of Elberton, 109 Ga. 28; Lewis on Eminent Domain (3 Ed.), sec. 366; Dillon on Mun. Corp. (5th Ed.) sec. 1018.

WOODSON, J. Elder, J., concurs; Graves, J., concurs in separate opinion, in which James T. Blair, C. J., and Walker and David E. Blair, JJ., concur; Higbee, J., dissents.

OPINION

[288 Mo. 622] In Banc.

Prohibition; Mandamus.

WOODSON, J.

These two cases were argued and submitted to this court as one case, and for that reason we will write the opinion as though only one case were here. The facts are undisputed, as shown by statements of counsel, and are as follows:

The controlling facts and the applicable legal principles in these two cases being so nearly identical, it appears to us that by considering them together as practically one case the time and labors of the court, as well as of counsel, will be conserved, and accordingly we shall do so.

The object and purpose of each of these suits is to control the judicial conduct of Judge Buckner of our Jackson Circuit Court and of his condemnation commissioners, whom he appointed to assess damages accruing to property owners in a certain condemnation case to the extent of requiring them to consider of and determine the amount of plaintiffs' damage by reason of the taking of their property for public use.

The plaintiff in the condemnation case is the School District of Kansas City, and the defendants, among whom are the plaintiffs at bar, are all of the owners of lots in Meadow Park Addition in that city, and the School District [288 Mo. 623] is seeking to condemn and appropriate Blocks 3 and 4 in that addition for public use as a schoolhouse site. The addition was platted in January, 1910, and is half a mile long east and west, and one-fourth of a mile wide north and south, and Meyer Boulevard, one of the prominent boulevards of the city, it being one hundred and forty feet in width and about two and a half miles long, runs east and west through the middle of the addition, and into Swope Park at its easterly terminus. The proposed schoolhouse site, Blocks 3 and 4, comprise a tract of about ten acres which fronts south on the Meyer Boulevard and east on the Morning Side Drive Boulevard, and occupies

Page 1025

the most elevated, commanding and beautiful location in the entire addition, and indeed of the entire neighborhood. Each and every lot in that addition is impressed with a certain use, with an easement, or more specifically, a negative easement, which was created and is evidenced by certain "restrictions and agreements," contained in the title deeds of each and every lot-holder, except those lots not yet sold but now owned by the original owner, Meadow Park Land Company; that company is the common source of title, and it established and promulgated the plan and purpose of these restrictive covenants and agreed with all purchasers in the addition and owners of adjacent land to embody the same covenants in the title to every lot in the addition, except a slight area, which is not material here; and both express and implied covenants and restrictions exist between it (the Meadow Park Land Company) and each and all the purchasers and grantees of it of lots in said addition, and also by an express contract between it and the owners of adjacent lands, to the effect that the same covenants and restrictions herein set out shall be incorporated in the title and enforced as to each and every lot in said Meadow Park Addition, whether they be owned by it, the Meadow Park Land Company, or its grantees. And as to this, the express language of the answer of the Meadow Park Land Company in the said [288 Mo. 624] condemnation case, which allegations are set out in the petitions for these writs and are therefore admitted by the defendants in the case at bar by reason of their demurrers to the petitions for these writs, is to this effect:

"Defendant further says that on or about January, 1910, it entered into a written agreement with the owners of the eighty acre tract of land lying immediately south of and adjoining the eighty acre tract comprising Meadow Park Addition, whereby it was mutually covenanted and agreed between them that each of said tracts should be restricted to residence uses by covenants and restrictions substantially like those set out in the petition for a term of twenty-five years from January 1, 1910; and this defendant (Meadow Park Land Company) says that at all times since the platting of said Meadow Park Addition it has represented and advertised to all purchasers and to the public in general that all of the lots and tracts of land in said Meadow Park Addition will be used and devoted to residence purposes, and will be conveyed and held subject to the covenants and restrictions set out in the petition (the condemnation petition) herein.

"Defendant says that by reason of the character the property, comprising the lands in Meadow Park Addition, has acquired by reason of the fixed purpose and policy of the owners of that and surrounding lands to devote it to residential uses in accordance with the covenants and restrictions herein referred to, it has acquired a great and substantial value and that such value will be greatly depreciated and lessened by the taking and appropriation and use of Blocks 3 and 4 in said addition as and for a site for a school-house in accordance with the petition herein.

The exact terms of the restrictive covenants are as here set out; and there is no dispute about them, for they are recited in the condemnation petition and in each of the petitions for these writs, and consequently are admitted by all parties, and they are embodied in each and [288 Mo. 625] every deed from the Meadow Park Land Company to its grantees, the Peters as well as every other lot-owning defendant in the condemnation case, immediately following the granting clause in such deeds, and they are as follows:

"Restrictions and Agreements.

"Subject however to the following restrictions and agreements: And the second party, grantee herein, for himself and for all persons claiming under him, her or them agrees as follows, viz:

"First: That no building shall be erected on said lot other than a residence and usual appurtenant outbuilding for use in connection with said residence, and that said lot shall be used only for residence purposes. Further, that no flat building or apartment building shall be erected upon said property. Said lot shall not be sold to or occupied by negroes.

"Second: That only one residence shall be erected or re-built in case of destruction and maintained on said lot. That no residence shall be erected thereon which shall cost and be reasonably worth less than $ 3500.

"Third: That at no point shall any part of such residence building (inclusive of porches) be nearer than 25 feet of the front street line of said lot, and no stable, barn or other outbuildings shall be erected on said lot elsewhere than on the rear thereof, and if a corner lot, nearest to the side line fartherest from the lateral street.

"Fourth: These restrictions and agreements shall be binding and effective for a term of twenty-five years from January 1, 1910, upon the grantee or grantees herein and all persons claiming under such grantee or grantees, and are made for the use and benefit of the grantor herein and its past or future grantees of other lands in said Meadow Park Addition and all persons claiming under them or any of them, and in case of breach or threatened breach of any restriction or agreement contained, the grantor herein, or any person or persons holding or owning any interest in any other lands in said addition, shall be entitled [288 Mo. 626] from time to time to sue for and obtain an injunction prohibitive and mandatory or either as may be sued for, to prevent such breach or to enforce the performance and observance of such restrictions and agreements and each of them and to compel...

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56 practice notes
  • 470 A.2d 813 (Md.App. 1984), 369, Washington Suburban Sanitary Com'n v. Frankel
    • United States
    • Maryland Court of Special Appeals of Maryland
    • February 3, 1984
    ...J.); Allen v. Detroit, 167 Mich. 464, 133 N.W. 317 (1911); Burger v. St. Paul, 241 Minn. 285, 64 N.W.2d 73 (1954); Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024 (1921); Horst v. Housing Authority, 184 Neb. 215, 166 N.W.2d 119 (1969); Meredith v. Washoe County School Dist., 84 Nev. 15, 435 P......
  • 222 N.W. 325 (Mich. 1928), 142, Johnstone v. Detroit, G.H. & M. Ry. Co.
    • United States
    • Michigan Supreme Court of Michigan
    • December 4, 1928
    ...railroad track, partly on an embankment and partly in an open cut, in a district restricted exclusively to residences; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A. L. R. 543, where land, restricted to residence purposes, was taken for a schoolhouse; and Ladd v. Boston, 151 Mass. 585......
  • 169 S.W.2d 697 (Mo. 1943), 37566, State ex rel. Kansas City Public Service Co. v. Waltner
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 25, 1943
    ...Mo. 230; State ex rel. Wright v. McQuillin, 252 Mo. 334; State ex rel. St. Louis v. Beck, 330 Mo. 118, 63 S.W.2d 814; Peters v. Buckner, 288 Mo. 618; State ex rel. Natl. Refining Co. v. Seehorn, 334 Mo. 547, 127 S.W.2d 418; State ex rel. Castlen v. Mulloy, 331 Mo. 776, 55 S.W.2d 294; State ......
  • 197 S.W.2d 617 (Mo. 1946), 39827, Matthews v. First Christian Church of St. Louis
    • United States
    • Missouri United States State Supreme Court of Missouri
    • October 14, 1946
    ...to build contrary thereto by condemnation. [See also State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024; 14 Am. Jur. 608, sec. 193; 26 C.J.S. 508, sec. 162.] In the Britton case, the restricted lots were reserved for offices and retai......
  • Request a trial to view additional results
56 cases
  • 470 A.2d 813 (Md.App. 1984), 369, Washington Suburban Sanitary Com'n v. Frankel
    • United States
    • Maryland Court of Special Appeals of Maryland
    • February 3, 1984
    ...J.); Allen v. Detroit, 167 Mich. 464, 133 N.W. 317 (1911); Burger v. St. Paul, 241 Minn. 285, 64 N.W.2d 73 (1954); Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024 (1921); Horst v. Housing Authority, 184 Neb. 215, 166 N.W.2d 119 (1969); Meredith v. Washoe County School Dist., 84 Nev. 15, 435 P......
  • 222 N.W. 325 (Mich. 1928), 142, Johnstone v. Detroit, G.H. & M. Ry. Co.
    • United States
    • Michigan Supreme Court of Michigan
    • December 4, 1928
    ...railroad track, partly on an embankment and partly in an open cut, in a district restricted exclusively to residences; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A. L. R. 543, where land, restricted to residence purposes, was taken for a schoolhouse; and Ladd v. Boston, 151 Mass. 585......
  • 169 S.W.2d 697 (Mo. 1943), 37566, State ex rel. Kansas City Public Service Co. v. Waltner
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 25, 1943
    ...Mo. 230; State ex rel. Wright v. McQuillin, 252 Mo. 334; State ex rel. St. Louis v. Beck, 330 Mo. 118, 63 S.W.2d 814; Peters v. Buckner, 288 Mo. 618; State ex rel. Natl. Refining Co. v. Seehorn, 334 Mo. 547, 127 S.W.2d 418; State ex rel. Castlen v. Mulloy, 331 Mo. 776, 55 S.W.2d 294; State ......
  • 197 S.W.2d 617 (Mo. 1946), 39827, Matthews v. First Christian Church of St. Louis
    • United States
    • Missouri United States State Supreme Court of Missouri
    • October 14, 1946
    ...to build contrary thereto by condemnation. [See also State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024; 14 Am. Jur. 608, sec. 193; 26 C.J.S. 508, sec. 162.] In the Britton case, the restricted lots were reserved for offices and retai......
  • Request a trial to view additional results