253 S.W.2d 143 (Mo. 1952), 42937, Scallet v. Stock

Docket Nº42937
Citation253 S.W.2d 143, 363 Mo. 721
Opinion JudgeBOHLING
Party NameB. L. Scallet and Harry H. Goldfader, Trustees of Clayshire, a Subdivision in the County of St. Louis, Missouri, and Clayshire Improvement Association, a Corporation, Plaintiffs-Appellants and Leslie E. Portnoy et al., Intervenors-Appellants, v. William A. Stock, and Emily Stock, his wife, W. A. Stock, d/b/a W.A. Stock Undertaking Company, and Gale
AttorneyLewis, Rice, Tucker, Allen & Chubb, James A. Singer and Noah Weinstein for appellants; Jerome W. Sandweiss of counsel. Flynn & Parker, Francis C. Flynn and Norman C. Parker for respondents.
Judge PanelBohling, C. Westhues and Barrett, CC., concur.
Case DateDecember 08, 1952
CourtSupreme Court of Missouri

Page 143

253 S.W.2d 143 (Mo. 1952)

363 Mo. 721

B. L. Scallet and Harry H. Goldfader, Trustees of Clayshire, a Subdivision in the County of St. Louis, Missouri, and Clayshire Improvement Association, a Corporation, Plaintiffs-Appellants and Leslie E. Portnoy et al., Intervenors-Appellants,

v.

William A. Stock, and Emily Stock, his wife, W. A. Stock, d/b/a W.A. Stock Undertaking Company, and Gale Henderson, Defendants-Respondents

No. 42937

Supreme Court of Missouri

December 8, 1952

Appeal from Circuit Court of St. Louis County; Hon. Raymond E. LaDriere, Judge.

Reversed (with directions).

SYLLABUS

Injunction action by subdivision trustees to enjoin the construction of a mortuary and the use of adjoining residential lots for parking. If the building permit violated the zoning ordinance of the City of Clayton the administrative remedy was exclusive and no injunctive relief may be granted. A restricted use mortuary is not a private nuisance at the business location in question. An injunction should be granted against the use of the residential lots for parking and against a more extended use of the mortuary than that set forth in a stipulation.

[363 Mo. 722]Lewis, Rice, Tucker, Allen & Chubb, James A. Singer and Noah Weinstein for appellants; Jerome W. Sandweiss of counsel.

(1) The erection and operation of a funeral parlor and attached parking lot on the site in question constitutes a violation of the zoning ordinances of the City of Clayton, to-wit: Article II, Sec. 1, Par. 43, Article II, Sec. 1, Par. 45 and Article X, Sec. 5 of said Zoning Ordinances and should be enjoined on the application of private parties affected thereby. Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357. (2) The erection and operation of a funeral parlor and attached parking lot on the site in question constitutes a violation of the private restrictions. Indenture of Trust, pp. 13-20. (3) The erection and operation of a funeral parlor on the site in question constitutes a private nuisance. Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119; Street v. Marshall, 316 Mo. 698, 291 S.W. 494; Rockenbach v. Apostle, 330 Mich. 338, 47 N.W.2d 636. (4) The trial court erred in failing to follow the controlling decisions of the Supreme Court of Missouri. Tureman v. Ketterlin, 304 Mo. 221, 263 S.W. 202; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119; Street v. Marshall, 316 Mo. 698, 291 S.W. 494. (5) The erection and operation of a parking lot on the site in question constitutes a private nuisance. Rhodes v. A. Moll Grocer Co., 231 Mo.App. 751, 95 S.W.2d 837.

Flynn & Parker, Francis C. Flynn and Norman C. Parker for respondents.

(1) The erection of the mortuary building on Lots 1 and 2 of Block 8 Clayshire Subdivision does not violate the rear-yard provision of the applicable zoning ordinance of the City of Clayton but is fully within the provisions of that ordinance empowering the building commissioner to grant a building permit under the circumstances here presented. The failure of plaintiffs-intervenors to appeal from the building commissioner's decision granting the permit to construct the building precludes them from coming to equity for relief since by so failing to appeal they did not exhaust their clear and adequate legal remedy. As to Lots 3 and 4 the trial court was correct in dismissing plaintiffs' and intervenors' petition without prejudice as to the use of these lots for parking purposes since there was no evidence of these lots being used for parking. Clayton Zoning Ordinance, Art. X, Sec. 5, Para. 3; Art. XV, Sec. 1, Para. 4; Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054; Superior Press Brick Co. v. City of St. Louis, 155 S.W.2d 290; Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357. (2) The erection and operation of the funeral parlor on Lots 1 and 2 does not violate the private restrictions because the building plans were approved by one of the subdivision trustees and, even if approval of one trustee be insufficient, the power attempted to be granted to the trustees with respect to submission of building plans and specifications is void and inoperative because too vague and indefinite to be enforced in a court of equity. Kline v. Colvert, 91 N.E.2d 299; Exchange Realty Co. v. Bird, 16 Ohio Law 391; Childs v. Fuchs, 249 S.W.2d 454. (3) The business and commercial properties situated in the immediate neighborhood, the fact that Lots 1 and 2 are zoned for business -- including, specifically, undertaking establishment -- and the fact that the private restrictions expressly permit the use of these lots for business property constitute a preponderance of evidence supporting the finding of the trial court that the funeral home is not in a purely residential neighborhood. Kirk v. Mabis, 215 Iowa 769, 246 N.W. 759, 87 A.L.R. 1055; Dawson v. Laufersweiler, 241 Iowa 850, 43 N.W.2d 726; Linsler v. Booth Undertaking Co., 120 Wash. 177, 206 P. 976; 54 Am. Jur., pp. 512-514. (4) There was no evidence to establish any use of Lots 3 and 4 for parking purposes nor were there any facts in evidence that even if such was the planned use a nuisance would exist. The trial court properly dismissed plaintiffs' and intervenors' petitions "without prejudice as to Lots 3 and 4". Holke v. Herman, 87 Mo.App. 125.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Page 144

[363 Mo. 723] B. L. Scallet and Harry H. Goldfader, as Trustees of Clayshire subdivision within the city of Clayton, St. Louis county, Missouri, under an indenture of trust dated March 5, 1945, and Clayshire Improvement Association, a non-profit corporation organized for the improvement, protection and maintenance of said subdivision, and certain intervenors, property owners of said subdivision, prosecute this action to enjoin William A. Stock and Emily Stock, his wife, as owners, William A. Stock, doing business as W.A. Stock Undertaking Company, and Gale Henderson, an architect and builder, from erecting a mortuary and parking lot on Lots 1, 2, 3 and 4, in Block 8, of said Clayshire subdivision. The trial resulted in a judgment in favor of defendants, and the petitions of plaintiffs and intervenors were dismissed as to said Lots 1 and 2 upon which defendants were erecting a mortuary, and dismissed without prejudice as to said Lots 3 and 4 which defendants intended to use for the parking of...

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13 practice notes
  • 257 S.W.2d 609 (Mo. 1953), 42851, Leffen v. Hurlbut-Glover Mortuary, Inc.
    • United States
    • Missouri Supreme Court of Missouri
    • April 13, 1953
    ...221, 262 S.W. 202; Streett v. Marshall, 316 Mo. 698, 291 S.W. 494; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119; Scallet v. Stock, 363 Mo. 721, 253 S.W.2d 143; Andrews v. Metropolitan Building Co., 349 Mo. 927, 163 S.W.2d 1024; Dist. of Columbia v. Wardell, 122 F.2d 202; Littlehales ......
  • 286 S.W.2d 813 (Mo. 1956), 44703, Culberson v. Daniel Hamm Drayage Co.
    • United States
    • Missouri Supreme Court of Missouri
    • January 9, 1956
    ...Commission ‘ contemplate an unequivocal affirmative finding as to what the facts are.’ Michler v. Krey Packing Co., supra [363 Mo. 707,253 S.W.2d 143]. Although her claim is of a contingent nature she had the right to assert it, Allen v. St. Louis-San Francisco R. Co., 338 Mo. 395, 90 S.W.2......
  • 369 S.W.2d 893 (Mo.App. 1963), 31518, Barnes v. Anchor Temple Ass'n
    • United States
    • Missouri Court of Appeals of Missouri
    • July 16, 1963
    ...and preventing violations of the building restrictions. * * *' See also Bub v. McFarland, Mo.App., 196 S.W. 373; Scallet v. Stock, 363 Mo. 721, 253 S.W.2d 143; Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346; and Proetz v. Central District of C. & M. Alliance, Mo.App., ......
  • 907 S.W.2d 236 (Mo.App. S.D. 1995), 20050, Parrott v. HQ, Inc.
    • United States
    • Missouri Court of Appeals of Missouri
    • September 20, 1995
    ...reasonable certainty whether or not correct rules of law have been applied to facts which could properly be found....' " Michler, 253 S.W.2d at 143....
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12 cases
  • 257 S.W.2d 609 (Mo. 1953), 42851, Leffen v. Hurlbut-Glover Mortuary, Inc.
    • United States
    • Missouri Supreme Court of Missouri
    • April 13, 1953
    ...221, 262 S.W. 202; Streett v. Marshall, 316 Mo. 698, 291 S.W. 494; Clutter v. Blankenship, 346 Mo. 961, 144 S.W.2d 119; Scallet v. Stock, 363 Mo. 721, 253 S.W.2d 143; Andrews v. Metropolitan Building Co., 349 Mo. 927, 163 S.W.2d 1024; Dist. of Columbia v. Wardell, 122 F.2d 202; Littlehales ......
  • 286 S.W.2d 813 (Mo. 1956), 44703, Culberson v. Daniel Hamm Drayage Co.
    • United States
    • Missouri Supreme Court of Missouri
    • January 9, 1956
    ...Commission ‘ contemplate an unequivocal affirmative finding as to what the facts are.’ Michler v. Krey Packing Co., supra [363 Mo. 707,253 S.W.2d 143]. Although her claim is of a contingent nature she had the right to assert it, Allen v. St. Louis-San Francisco R. Co., 338 Mo. 395, 90 S.W.2......
  • 369 S.W.2d 893 (Mo.App. 1963), 31518, Barnes v. Anchor Temple Ass'n
    • United States
    • Missouri Court of Appeals of Missouri
    • July 16, 1963
    ...and preventing violations of the building restrictions. * * *' See also Bub v. McFarland, Mo.App., 196 S.W. 373; Scallet v. Stock, 363 Mo. 721, 253 S.W.2d 143; Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346; and Proetz v. Central District of C. & M. Alliance, Mo.App., ......
  • 907 S.W.2d 236 (Mo.App. S.D. 1995), 20050, Parrott v. HQ, Inc.
    • United States
    • Missouri Court of Appeals of Missouri
    • September 20, 1995
    ...reasonable certainty whether or not correct rules of law have been applied to facts which could properly be found....' " Michler, 253 S.W.2d at 143....
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1 books & journal articles
  • Keeping pigs out of parlors: using nuisance law to affect the location of pollution.
    • United States
    • Environmental Law Vol. 27 Nbr. 2, June 1997
    • June 22, 1997
    ...the [zoning) law[s] `is not the controlling factor, though it is, of course, entitled to some weight.'"). (51) See Scallet v. Stock, 253 S.W.2d 143, 146 (Mo. 1952) (The plaintiff sought to enjoin the operation of a mortuary in a residential zone with specific lots for businesses. The c......