Scallet v. Stock

• Citation: 253 S.W.2d 143,363 Mo. 721
• Decision Date: 08 December 1952
• Docket Number: No. 2,No. 42937,42937,2
• Parties: SCALLET et al. v. STOCK et al
• Court: United States State Supreme Court of Missouri

Page 143

253 S.W.2d 143

363 Mo. 721

SCALLET et al. v. STOCK et al.

No. 42937.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1952.

Lewis, Rice, Tucker, Allen & Chubb and James A. Singer, St. Louis, Noah Weinstein, St. Louis (Jerome W. Sandweiss, St. Louis, of counsel), for appellants.

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

BOHLING, Commissioner.

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 automobiles. The evidence was that the operation of the mortuary would damage some property owners (intervenors) in excess of $7,500. This is sufficient to vest appellate jurisdiction here. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545, 550.

Plaintiffs, the term includes intervenors, contend the erection and maintenance of the mortuary constitutes a violation of certain provisions of the zoning ordinance of the city of Clayton and also a violation of certain restrictive covenants of the aforesaid indenture of trust. With a general statement of the facts involved, the particular facts may be developed in connection with the issues presented under the respective instruments.

A plat establishing Clayshire subdivision was filed in the office of the recorder of deeds for St. Louis county on March 19, 1945; and on said date the indenture of trust was recorded. It placed certain restrictions on the property within said subdivision and named Walter A. Beck and Jack Portnoy as trustees for the purposes of the trust.

Clayshire subdivision lies west of Brentwood boulevard and north of Clayton road at their intersection. These streets are arterial thoroughfares, 60 feet in width, and carry tremendous volumes of traffic. The subdivision consists of 135 lots of which 13 on the outer rim of the subdivision are available for business property, and the other 122 lots are reserved for residential purposes, a number of them in the blocks having lots for business purposes may be used for 'multiple dwellings.'

William A. Stock had been engaged in the undertaking business since 1919 at Grand and Florissant in the city of St. Louis. In 1950 he and his wife, Emily Stock, acquired title to said Lots 1, 2, 3 and 4. Under the zoning ordinance (originally enacted in 1944), as amended, and also under the plat and indenture of trust for Clayshire subdivision said Lots 1 and 2 were available as business property 'G. Commercial District,' embracing 'undertaking establishments'; and Lots 3 and 4 were available for multiple dwellings but not for commercial or business purposes. The trust indenture contemplated that the plans and specifications for buildings in the subdivision be approved by the trustees. Defendants secured the written approval of Trustee Beck to the plans for the mortuary in March, 1951, Mr. Beck stating he had been attempting to resign and was not too much interested in what went on there. Defendant Stock testified they did not attempt to locate Trustee Portnoy; but Mr. Portnoy testified he refused to give his approval, and the first he knew of Mr. Beck's approval was when, upon his refusal, he was so informed and asked why he would not approve.

The mortuary was under construction at the time of trial, being situated partly on Lot 1 and partly on Lot 2. The investment was estimated to approximate $165,000. The cost of erecting the building was estimated at $130,000, and its architecture was described as tasteful, 'a very attractive building.'

Walter A. Beck was succeeded as trustee by B. L. Scallet on April 9, 1951, and Jack Portnoy was succeeded as trustee by Harry H. Goldfader on April 18, 1951. On April 20, 1951, the new trustees notified the building commissioner's office of the city of Clayton of their appointment as trustees.

Trustees Scallet and Goldfader each testified that they refused to approve the plans for the morturary. The plans were displayed at a meeting of the Clayshire Improvement Association on May 3, 1951; and, Mr. Stock having requested an open meeting if there were opposition, arrangements were made for such a meeting on May 10, 1951. It was then decided to oppose the plans for the mortuary.

However, on May 7, 1951, and prior to the open meeting arranged for May 10th at the request of Mr. Stock, an application was filed and on the same day a permit was issued to defendants for the erection of a mortuary on said Lots 1, 2, 3, 4. The permit was issued by John O'Sullivan, director of safety of the city of Clayton, who testified he was under Alden B. Park, building commissioner of said city. The following appeared below the signature on the application: 'Note--Lots 3 & 4--each 65' by 120' will be used for parking.'

Plaintiffs first contend the mortuary building violates the zoning ordinance provisions requiring a rear yard of 25 feet. The evidence established that the building will be much less than the ordinance requirements from the rear lot line of Lot 2. A determination of the issue does not require the setting forth of the applicable ordinance yard provisions; i. e., Art. II, Sec. 1, Subsecs. 43 and 45; Art. X, Sec. 5, Subsec. 3, and Art. XV, Sec. 1, Subsec. 4.

Defendants say plaintiffs, not having availed themselves of the adequate legal remedies authorized under the provisions of the ordinance, consistent with the Zoning Enabling act, Sections 89.100 and 89.110, RSMo 1949, V.A.M.S., for a review of any decision of an administrative officer by the board of adjustment and upon certiorari by the circuit court, may not successfully urge the instant contention as a ground for injunctive relief in this proceeding. Hernreich v. Quinn, 350 Mo. 770, 168 S.W.2d 1054, 1058, and Superior Press Brick Co. v. City of St. Louis, Mo.App., 155 S.W.2d 290, 294[1-4, 6].

Plaintiffs, on the other hand, say the instant proceeding falls within the ruling in Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357, 362.

In the Hernreich case, supra, so far as material, the St. Louis board of adjustment issued a permit to occupy as a residence a garage converted into a residence which violated rear yard zoning ordinance requirements of a minimum depth of 25 feet. Court en Banc stated: 'To attack that decision [of the board of adjustment] the Berards [adjoining neighbors] were bound to exhaust their remedy by certiorari under Sec. 176 of the ordinance before they could resort to an action at law or in equity * * *.' [350 Mo. 770, 168 S.W.2d 1058.] The Superior Press Brick Co. case is to like effect.

The holdings in the Hernreich and Superior Press Brick Co. cases, supra, were approved in Evans v. Roth, supra. In Evans v. Roth, after unsuccessful attempts to have a building in a district zoned for dwellings, i. e., houses occupied by not more than two families, re-zoned as an apartment house, the owner permitted it to be occupied as four units for dwelling purposes. Interested parties instituted suit to enjoin its use as an apartment in violation of the zoning ordinance. The plaintiffs in that case were not aggrieved by the determinations of the zoning authorities but by the unauthorized use to which the owners subjected the premises. We held the plaintiffs could proceed in a court of equity without resorting to the zoning authorities for an abatement of the offending use of the property. The Evans case differs in that the defendants in the instant case are acting under a permit granted by the zoning authorities, as in the Hernreich case. Plaintiffs' authorities do not establish reversible error on the issue under discussion.

Plaintiffs next contend that the erection of the mortuary and parking lot violates restrictions in the indenture of trust and constitutes a private nuisance.

The indenture of trust provided, so far as material, that:

'No nuisance of any kind shall be erected, maintained or operated in any part of this subdivision.'

Also, that all lots in said subdivision were to be used 'for single family residences,' except, as hereinbefore stated, that a limited number of designated lots of the subdivision, including said Lots 1 and 2, 'may be used for Business Property'; and except that certain designated lots, including said Lots 3 and 4, 'may be used for Multiple Dwellings.'

'No building shall be erected, improved or altered unless and until the plans and specifications have been approved in writing by the Trustees.'

It further provided that all covenants and restrictions of said trust indenture 'shall attach to and run with the land' and bind all persons claiming them until January 1, 1970, and for their continuation until January 1, 1980, unless changed by a majority of the then lot owners of record.

The trustees were vested with authority to change the stated restrictions, provided the changes did not conflict with the zoning ordinances of the city of Clayton.

The fact that the site is zoned by the city for business property, including 'undertaking establishments,' does not preclude injured property owners from enjoining a business thereat constituting a private nuisance in the absence of other factors...