Chiles v. Fuchs

• Decision Date: 09 June 1952
• Docket Number: No. 42953,No. 2,42953,2
• Citation: 363 Mo. 114,249 S.W.2d 454
• Parties: CHILES et al. v. FUCHS et al
• Court: Missouri Supreme Court

Page 454

249 S.W.2d 454

363 Mo. 114

CHILES et al. v. FUCHS et al.

No. 42953.

Supreme Court of Missouri, Division No. 2.

June 9, 1952.

Joseph Boxerman, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for appellants.

C. Kenneth Thies, St. Louis, for respondents.

TIPTON, Judge.

In the circuit court of the city of St. Louis the appellants filed this action seeking a declaratory judgment to ascertain if certain instruments impose any restrictions upon the use of appellants' property located on Hampton Avenue in Southwest Park, a subdivision in the city of St. Louis. All of the owners of the lots in this subdivision facing on Hamption Avenue were made defendants and as a representative class of the several hundred lot owners in this subdivision. None of the defendants answered except the Phillips Petroleum Company. It filed an answer disclaiming any knowledge or information sufficient to form a belief with respect to appellants' claim and disclaimed any interest in the subject matter of the suit. After a hearing at which none of the respondents were represented, the trial court entered a judgment finding the appellants were not entitled to the relief prayed and dismissed their petition.

At the time this tract of land was platted as a subdivision it was owned by Robert E. Rose. The plat of this subdivision was filed in the office of recorder of deeds in the city of St. Louis on March 27, 1925. This subdivision is bounded on the east by Hampton Avenue, on the west by Watson Road, on the north by Marquette and on the south by Pernod Avenue. There are 9 blocks in this subdivision and 342 lots. Each block is so laid out that the longer side thereof runs east and west. The west side of blocks 1, 2 and 3 face on Watson Road, and the east side of blocks 7, 8 and 9 fact on Hampton Avenue. All of the lots in the subdivision with the exception of those immediately abutting Hampton Avenue and Watson Road are laid out so they run north and south. With respect to these lots there is marked on the plat a broken line 20 feet back of the street line. This broken line is marked on the plat '20' Building Line.'

In each of the blocks facing on both Watson Road and Hampton Avenue there are 7 lots. 115 feet west of Hampton Avenue there is an alley that separates the property from the remaining portion of those blocks. The lots east of this alley are so laid out that they run east and west and front on Hampton Avenue. Lots 1 to 7 inclusive of block 7, and lots 1 and 2 of block 8 are owned by appellants.

The plat of this subdivision contains no language which refers to the broken lines marked 'building line' or any other restrictions.

On October 8, 1925 there was filed in the office of the recorder of deeds in the city of St. Louis an instrument executed by Robert E. Rose. By its terms there were to be restrictions on the property of this subdivision. Appellants and respondents acquired title to their property through Rose.

This restrictive instrument reads as follows:

'Whereas, Robert E. Rose, a single man, of the City of Saint Louis, State of Missouri, is the owner of 'Southwest Park' a subdivision in the City of Saint Louis, State of Missouri, a plat of which is on file in the Recorders Office in Book 21 page 88 of the Records of the City of Saint Louis, State of Missouri and whereas, said Robert E. Rose, as a part of the consideration to induce purchasers to purchase lots in said subdivision has imposed and does impose upon each and every lot in said subdivision restrictions as hereinafter set forth, said Robert E. Rose has conveyed some of the lots in said subdivision and in the Deed for said lots the following restriction was inserted 'Subject to conditions and restrictions to be placed of Record.' It is understood that the restrictions in this instrument shall be construed and are the restrictions referred to in said deeds, and each conveyance of any lot in said subdivision whether previous to the filing of this instrument or subsequent thereto, shall be subject to the restrictions as herein set forth: 1. No building or other structure shall be erected nearer in the street upon which it fronts, than the building lines as shown on the plat of said subdivision nor shall any building or structure be erected, the front line of which is more than six inches back of said building line, the intent of this restriction being to make all the buildings erected in this subdivision conform to the building line and have an even frontage. No fence of any kind other than hedge fences shall be erected nearer to the street than the building line. The restriction in this paragraph shall not prevent the erection of open porches to extend beyond the building line, but said porches shall extend not further than eight (8) feet beyond said line. 2. No tight board fences shall be erected on any of the lots in said subdivision except the fence paralleling the alleys which may be of tight board construction. All other fences shall be...