238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick

Docket Nº42059
Citation238 S.W.2d 346, 361 Mo. 1001
Opinion JudgeWESTHUES
Party NameCowherd Development Company, a Corporation, et al., Appellants, v. Lucian W. Littick et al., Respondents
AttorneyJohn C. Meredith, Meredith & Harwood, George T. Aughinbaugh, Moore & Aughinbaugh, Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping, Houts & James for appellants. George K. Brasher and Guy M. Boyer for respondents.
Judge PanelWesthues, C. Bohling and Barrett, CC., concur.
Case DateMarch 12, 1951
CourtSupreme Court of Missouri

Page 346

238 S.W.2d 346 (Mo. 1951)

361 Mo. 1001

Cowherd Development Company, a Corporation, et al., Appellants,

v.

Lucian W. Littick et al., Respondents

No. 42059

Supreme Court of Missouri

March 12, 1951

Motion for Rehearing or to Transfer to Banc Overruled April 9, 1951.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern; Judge.

Affirmed.

SYLLABUS

Action under the Declaratory Judgment Act to determine whether residential restrictions were extended for an additional 25 years. The authority of a majority of the lot owners to extend the restrictions did not give the right to exempt some lots from the extension. A valid extension instrument was not revoked by a subsequent instrument attempting to exempt some lots. Increased value of lots on a business street if unrestricted will not justify removal of the restrictions. The Supreme Court has jurisdiction of the appeal.

[361 Mo. 1002]John C. Meredith, Meredith & Harwood, George T. Aughinbaugh, Moore & Aughinbaugh, Alvin C. Trippe, Hale Houts and Hogsett, Trippe, Depping, Houts & James for appellants.

(1) This case is here for consideration and determination by this court de novo. Connell v. Jersey Realty & Inv. Co., 352 Mo. 1122, 180 S.W.2d 49; Hastings v. Hudson, 359 Mo. 912, 224 S.W.2d 945; Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295; Sec. 114 (d), Civil Code of Missouri. (2) Assuming that it was otherwise valid, the second extension agreement, which purported to extend the restrictions of the lots in question, was made ineffective and cancelled by the third extension agreement. The third agreement was signed by the owners of 427 feet owned by signers of the second agreement, and thereby withdrew from the second agreement front foot ownership necessary to give it the majority required by the extension clause of the plat. City of Sedalia ex rel. Gilsonite Constr. Co. v. Montgomery, 227 Mo. 1, 127 S.W. 50, 109 Mo.App. 197, 88 S.W. 1014; City Trust Co. v. Crockett, 309 Mo. 683, 274 S.W. 802; Kaesser v. Becker, 295 Mo. 93, 243 S.W. 346; Mathews Real Estate Co. v. National Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Blackwell v. City of Lee's Summit, 326 Mo. 491, 32 S.W.2d 63; Dagley v. McIndoe, 199 Mo.App. 166, 176 S.W. 243; Fleming v. Fones, 230 Mo.App. 1147, 91 S.W.2d 208; Riverview State Bank v. Courtney, 229 Mo.App. 111, 74 S.W.2d 81. (3) The third extension agreement not only withdrew from the second extension agreement front foot ownership necessary to give the second a majority, but also supplemented the first extension agreement so that the first and third together had a majority of front foot representation, superseded the second agreement, constituted a complete and controlling extension agreement, and left the lots in question unrestricted and open to business use. State ex rel. Gentry v. Long-Bell Lumber Co., 321 Mo. 461, 12 S.W.2d 64; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024; Mathews Real Estate Co. v. National Printing & E. Co., 330 Mo. 190, 48 S.W.2d 911; Bowman v. Kansas City, 233 S.W.2d 26; Authorities (2), supra. (4) If the front-foot ownership represented in one extension agreement could not be withdrawn by the execution of a subsequent and different extension agreement by owners of the same front feet as contended in Points (2) and (3), then the first extension agreement would have been the only valid extension, and the second agreement, which purported to restrict the lots in question, was never effective. Without the signatures of persons owning 490 front feet who had signed the first extension agreement, the second extension agreement lacked a majority of front-foot ownership and was ineffective. (5) The attempt of the second extension agreement to extend the residence-use restrictions on the 63rd Street lots in question was also unreasonable and invalid because of the changes in conditions which had taken place since the original restrictions were placed upon the addition. Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465.

George K. Brasher and Guy M. Boyer for respondents.

(1) There was no provision in the original plat for the owners of a majority of the front feet to release any lot, and any attempt to release the lots on 63rd Street was void unless it contained the unanimous consent of the owners of the entire addition. Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, sec. 469. (2) Changed conditions in the territory adjacent to the restricted area or because some lots in the addition were more valuable for business than for residence purposes are not...

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16 practice notes
  • 558 S.E.2d 31 (Ga.App. 2001), A01A1221, Licker v. Harkleroad
    • United States
    • Georgia Court of Appeals of Georgia
    • November 20, 2001
    ...property rights of the owners of all lots in the tract." Id. at 365-366. Similarly, the court in Cowherd Dev. Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346 (1951), struck down a nonuniform amendment removing restrictive covenants from a handful of lots and noted, "[s]uch restrictio......
  • 253 S.W.2d 143 (Mo. 1952), 42937, Scallet v. Stock
    • United States
    • Missouri Supreme Court of Missouri
    • December 8, 1952
    ...lots involved. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W. 2d 545, 553[11, 12]; Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W. 2d 346, 350[3, 4]; Rockenbach v. Apostle, 330 Mich. 338, 47 N.W. 2d 636, 639[3]; Mutual Service Funeral Homes v. Fehler, Ala., 58 S......
  • 563 A.2d 382 (Md. 1989), Walton v. Jaskiewicz
    • United States
    • Maryland Court of Appeals of Maryland
    • September 11, 1989
    ...lot when the restrictions apply to a tract or parcel or block consisting of several lots"); Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346, 349 (1951) (holding that the amendment procedure contained in a declaration of covenants did not authorize the majority of owner......
  • 689 N.W.2d 491 (Mich.App. 2004), 248848, Maatta v. Dead River Campers, Inc.
    • United States
    • Michigan Court of Appeals of Michigan
    • September 21, 2004
    ...a single lot when the restrictions apply to a tract or parcel or block consisting of several lots); Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346, 349 (1951) (holding that the amendment procedure contained in a declaration of covenants did not authorize the majority of ow......
  • Request a trial to view additional results
16 cases
  • 558 S.E.2d 31 (Ga.App. 2001), A01A1221, Licker v. Harkleroad
    • United States
    • Georgia Court of Appeals of Georgia
    • November 20, 2001
    ...property rights of the owners of all lots in the tract." Id. at 365-366. Similarly, the court in Cowherd Dev. Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346 (1951), struck down a nonuniform amendment removing restrictive covenants from a handful of lots and noted, "[s]uch restrictio......
  • 253 S.W.2d 143 (Mo. 1952), 42937, Scallet v. Stock
    • United States
    • Missouri Supreme Court of Missouri
    • December 8, 1952
    ...lots involved. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W. 2d 545, 553[11, 12]; Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W. 2d 346, 350[3, 4]; Rockenbach v. Apostle, 330 Mich. 338, 47 N.W. 2d 636, 639[3]; Mutual Service Funeral Homes v. Fehler, Ala., 58 S......
  • 563 A.2d 382 (Md. 1989), Walton v. Jaskiewicz
    • United States
    • Maryland Court of Appeals of Maryland
    • September 11, 1989
    ...lot when the restrictions apply to a tract or parcel or block consisting of several lots"); Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346, 349 (1951) (holding that the amendment procedure contained in a declaration of covenants did not authorize the majority of owner......
  • 689 N.W.2d 491 (Mich.App. 2004), 248848, Maatta v. Dead River Campers, Inc.
    • United States
    • Michigan Court of Appeals of Michigan
    • September 21, 2004
    ...a single lot when the restrictions apply to a tract or parcel or block consisting of several lots); Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346, 349 (1951) (holding that the amendment procedure contained in a declaration of covenants did not authorize the majority of ow......
  • Request a trial to view additional results