Williams v. Carr

• Decision Date: 05 March 1923
• Citation: 248 S.W. 625,213 Mo.App. 223
• Parties: ANNA MAUDE WILLIAMS, Respondent, v. HUGH J. CARR, Appellant
• Court: Kansas Court of Appeals

248 S.W. 625

213 Mo.App. 223

ANNA MAUDE WILLIAMS, Respondent, v. HUGH J. CARR, Appellant

Court of Appeals of Missouri, Kansas City

March 5, 1923

Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Warner Dean, Langworthy, Thomson & Borders and Albert E. Stoll for respondent.

James W. Broaddus for appellant.

OPINION

BLAND, J.

This is an action to enjoin defendant from erecting a garage on his premises in Kansas City, Missouri. From a decree making permanent the injunction, defendant has appealed.

The facts show that on December 6, 1906, the Abington Land Company caused a tract of land owned by it in Kansas City to be platted and laid out in lots and streets to be known as Abington Park. Lots 63, 64, 65 and 66 were eighty feet in width and 135 feet in depth and faced toward the west on Spruce Street. Lot 63 was a corner lot and sided 135 feet on Anderson Avenue and lay south of the same. Instead of houses being built facing toward the west upon lots 63 and 64, these lots were divided into three tracts of ground with a house built on each tract facing Anderson Avenue. Defendants owns the west fifty feet of lots 63 and 64 which gives him a tract of land on the southeast corner of Anderson and Spruce Avenues upon which he has a residence standing facing the north. Plaintiff owns lots 65 and 66 with a residence on lot 66 facing west. This action is to enjoin defendant from building a garage, for which he had built the foundation, at the southeast corner of his land one and one-half feet from the south line of his property and one foot from the east line thereof. The front of the garage was to be thirty-one feet from the sidewalk line and forty feet from the street line of Spruce Avenue, or much nearer to the front line of lot 64 than the rear line thereof. Plaintiff proposes to build a house on lot 65 in the usual place facing west and if the garage is built it will be within four feet of the house and the front of the garage will be on a line with the front door of the house.

The property that defendant now owns was purchased from one McEwen on June 29, 1920, who obtained the property from the Abington Land Company on July 6, 1908. A deed from the Abington Land Company to McEwen provided for the following restrictions: That the lots should be used for residence purposes only; that no residence or dwelling house with appurtenances thereto should be erected on said lots costing less than $ 3,000; that the front building line of any residence exclusive of porches should not be nearer than thirty feet from the front street line of the lots and "No stable, barn or other outbuildings shall be erected on said lots elsewhere than on the rear thereof;" that the premises should not be transferred or leased to any colored person. The restrictions were to continue in force for twenty years from January 1, 1906. Plaintiff purchased her lots from the Abington Company on May 1, 1914, and the deed to her conveying said lots contained similar restrictions to those contained in the deed to McEwen.

The decision in this case turns mainly upon the proper construction of the words in the restrictions "stable, barn or other outbuildings" and whether such terms are broad enough to include garage. Certain rules of construction are cited by the parties. It is held that the "law favors the free and untrammelled use of real property. Restrictions in conveyances of the fee are regarded unfavorably and are therefore strictly construed." [Scharer v. Pantler, 127 Mo.App. 433, 437, 105 S.W. 668.]

"But, of course, the rule of construction thus stated is subject to that which obtains with respect to all contracts requiring the courts to give effect to the plain intention of the parties as gleaned from the language employed in the covenant when viewed in the light of the entire context of the instrument." [Kitchen v. Hawley, 150 Mo.App. 497, 503, 131 S.W. 142.] In view of the law favoring the untrammelled use of property where the intention to create building restrictions is doubtful, the ambiguity will be resolved against the restrictions. [Whitaker v. Realty & Investment Co., 197 Mo.App. 377, 196 S.W. 109; Conrad v. Boogher, 201 Mo.App. 644, 214 S.W. 211.] It is stated in Land Company v. Investment Company, 169 Mo.App. 715, 722, 155 S.W. 861--

"Although restrictions on the fee are not favored, yet when the intention of the parties is clear, court will enforce them. [Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556; Kitchen v. Hawley, 150 Mo.App. 497, 131 S.W. 142.] The intention of the parties must be determined from the language of the covenant itself considered in connection with the surrounding circumstances at the time the covenant was made (Ibid.); or, as it is sometimes said, from the language of the covenant itself considered in the light of the entire context of the instrument containing...