Barnes v. Anchor Temple Ass'n

• Citation: 369 S.W.2d 893
• Decision Date: 16 July 1963
• Docket Number: No. 31518,31518
• Parties: Percival C. BARNES, Jr., and Dorothea N. Barnes, Plaintiffs (Respondents), v. ANCHOR TEMPLE ASSOCIATION, Defendant (Appellant).
• Court: Court of Appeal of Missouri (US)

Page 893

369 S.W.2d 893

Percival C. BARNES, Jr., and Dorothea N. Barnes, Plaintiffs (Respondents), v. ANCHOR TEMPLE ASSOCIATION, Defendant (Appellant).

No. 31518.

St. Louis Court of Appeals, Missouri.

July 16, 1963.

Motion for Rehearing or for Transfer to Supreme Court Denied

Sept. 4, 1963.

Harry C. Avery, Ralph V. Wilson, St. Louis, for defendant-appellant.

Lashly, Lashly & Miller, William E. Rulon, St. Louis, for plaintiffs-respondents.

John J. Morris, City Counselor for City of University City, University City, as amicus curiae.

JACK P. PRITCHARD, Special Judge.

Plaintiffs filed this suit May 5, 1961, asking for a permanent injunction against defendant, Anchor Temple Association, from building and constructing a parking lot, and using and occupying therefor property adjoining plaintiffs' residential property in University Heights, a subdivision of St. Louis County, Missouri, alleged to be in violation of certain building and use restrictions as hereinafter set forth. Trial was had on June 22, 1961, which resulted in a decree of injunction against defendant from using the property as a parking area for automobiles, from which decree defendant appeals, after having filed motion for judgment or in the alternative for new trial, which were overruled.

The appeal in this case was first lodged in the Supreme Court of Missouri, but that court, holding that no constitutional question was preserved by defendant, ordered the case transferred to this court on January 21, 1963.

Although respondents have filed a brief herein, they did not participate in the oral arguments had on March 6, 1963, but at that time their former counsel informed the court that respondents had disposed of their property since the decree below.

The motion of the City of University City, Missouri, for leave to file brief as Amicus Curiae, and motion to intervene, were granted by the trial court.

Plaintiffs, after alleging and setting forth descriptions of the adjoining properties owned by the parties (Lot 19 in Block 5 of University Heights Subdivision owned by plaintiffs, and Lot 20 in Block 5 of University Heights Subdivision as owned by defendant) further alleged that on February 23, 1904, the University Heights Realty and Development Company caused to be subdivided into lots by a plat recorded in Volume 6 of Plats, pages 14 and 15, in the Office of the Recorder of Deeds for St. Louis County, Missouri, certain then owned by it into the subdivision named 'University Heights' which includes the properties owned at this time by the parties. Along with said plat were restrictions set out in a Declaration of Trust and Agreement, recorded in Book 161, page 37, of the records of said Recorder of Deeds, providing, insofar as is pertinent now, as follows:

'ARTICLE II

'The Company agrees and covenants that neither it nor its successors or assigns will or shall any of them have power to convey, demise or otherwise dispose of any of the said lots or any part thereof, except expressly subject to the conditions, restrictions and easements in these presents set forth and defined, and that every conveyance by said Company, or its successors or assigns of any of said lots or parts thereof shall expressly refer to this declaration of trust and agreement, and by such reference of otherwise make the provisions hereof a part of such conveyance.

'The burden of, and the obligation to observe and perform the covenants, restrictions, conditions and easements herein expressed in respect of each lot, shall run with the land and shall bind the owner or owners of such lot into whomsoever hands it may come, and the corresponding benefit, and the right to compel the observance of such covenants, restrictions, conditions and easements in respect to such lots, shall run with the title to all others of said lots, and enure to the benefit of the owners thereof from time to time, and such right may be enforced by the owner of any of such lots, by appropriate proceedings at law or in equity. * * *

'ARTICLE III

'Section 1. No building other than a private dwelling house, and the stable and outbuildings appurtenant thereto, shall be erected on any of said lots, nor shall any lot or part thereof be used or occupied for any but private residence purposes, * * *. This declaration of trust and agreement has been executed, and is made a part of the public records, for the express purpose of inducing persons, in consideration of the benefits hereby conferred, to purchase the said lots in University Heights, and is hereby made irrevocable and binding upon said Company, and upon said property and every lot and part thereof, in favor of the purchaser or purchasers of any of said lots of University Heights, as laid down on said plat, and their heirs and assigns. * * *'

Defendant admitted by answer the above allegations and the further matters alleged by plaintiffs that it purchased Lot 20 on or about January 29, 1952, by deed which contained by reference the identical restrictions and conditions as above set forth, and it also admitted that it is building a parking lot.

So far as ia material to this appeal, defendant denied plaintiffs' allegations as follows: that its property is not a 'private residence' or a 'building appurtenant thereto' within the meaning of said restrictions and conditions, or that the use or occupancy of said Lot 20 as a parking lot is not for private residence purposes. Defendant further denied plaintiffs' allegations that they will suffer irreparable damage if the defendant is permitted to construct and maintain said parking lot or use it for parking lot purposes; that their property will be depreciated in value thereby; that they will be subjected to constant noise and noxious odors caused by the ingress and egress of automotive vehicles and that the desirability of plaintiffs' property for use for residence purposes will be substantially reduced and diminished.

Further answering, defendant alleged that since the restrictions contained in the Declaration of Trust and Agreement, the whole neighborhood covered by same has so changed that it is no longer, and at the times herein complained of, was no longer an exclusive residential neighborhood; that in close proximity thereto was erected an apartment house, a Masonic Temple, three Jewish Synagogues and two churches; and that Delmar Boulevard, upon which plaintiffs' and defendants' properties front, is no longer a residential street, but is a main thoroughfare that today is burdened with the heaviest traffic in University City, especially bus and commercial motor vehicular traffic; that the restrictions are, accordingly, no longer valid or applicable; and the large congestion of automobiles and commercial vehicles on Delmar Boulevard and along the curbs of properly abutting Delmar Boulevard, make it desirable for the owners thereof to provide off street parking on their respective properties for their individual use and that of their guests; and that to restrain defendant from using a portion of its propperty for private parking purposes would impose great hardship on it and yield on benefit to plaintiffs whatsoever.

Defendant also alleged that the Declaration of Trust was on July 5, 1923, amended by court decree so as to permit the erection of a Masonic Temple on Lot 22 and the West 44 feet of Lot 1 in Block 5 of University Heights Subdivision, which temple was erected on said property, and by the acquisition of said lots all of said lots became limited and restricted for use as a single lot or parcel of ground in connection with the Masonic Temple as an appurtenance thereto, all of which benefitted the neighborhood in question and the property of plaintiffs in particular.

The evidence adduced reveals that plaintiffs, residing at 6925 Delmar Boulevard, have six children, three of whom are now residing at home with their parents. The Barnes purchased their property, Lot 19 in Block 5, of University Heights Subdivision, in 1946, paying $12,500 therefor. On April 2, 1961, the Barnes returned from a trip to Florida, and upon seeing a bulldozer in Lot 20, just east of their lot, made inquiries, and Mr. Barnes attended a conference with defendant's members. He learned that defendant intended to construct and use a parking lot on Lot 20, purchased by it in January, 1952, for use in connection with its building located farther east on Lots 21 and 22, and the West 44 feet of Lot 1, all in said Block 5. At this meeting the question of defendant purchasing plaintiffs' house came up, and Mr. Barnes quoted a price of $45,000 for it. Lot 20 had been a tennis court which had been built and used by plaintiffs' predecessor in title. Upon the tennis court some part of the backstop, one of the net posts and part of the clay court were remaining in part, although the court was fading out.

The original Declaration of Trust, setting up the residential restrictions on the properties here involved, was made January 19, 1905. On July 5, 1923, pursuant to provisions of the Declaration, Article III, Section 6, as follows:

'It is further agreed that if, at any time after January 1, 1910, a majority of the owners of lots in University Heights (estimated by the frontage of said lots and also by the assessed value of said lots) shall agree that further limitations and restrictions on the use of said lots in University Heights are desirable to maintain said tract as a first-class residence quarter, said majority of lot owners may petition the Circuit Court of said locality for a decree that such further limitations and restrictions be imposed as though recited herein, and if the said court upon due hearing (after such notice to all other lot owners as may be practicable) shall adjudge that said limitations prayed are reasonable and just, then it is hereby authorized by decree to make the same a part of the terms of this instrument upon the due record of said decree in the office of the Recorder of Deeds of said locality.'

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