Bolin v. Tyrol Inv. Co.

• Decision Date: 02 February 1918
• Docket Number: No. 18430.,18430.
• Citation: 273 Mo. 257,200 S.W. 1059
• Parties: BOLIN v. TYROL INV. CO.
• Court: Missouri Supreme Court

200 S.W. 1059

273 Mo. 257

BOLIN v. TYROL INV. CO.

No. 18430.

Supreme Court of Missouri. In Banc.

February 2, 1918.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Suit by Minnie T. Bolin against the Tyrol Investment Company. From a decree dismissing the suit and the overruling of motion for new trial, plaintiff appealed. Certified from the St. Louis Court of Appeals, where the decree was reversed and cause remanded (178 Mo. App. 1, 160 S. W. 588). Judgment of the trial court affirmed.

This suit was brought to the June term, 1910, of the circuit court for the city of St. Louis for the purpose of obtaining an injunction restraining the defendant from erecting an apartment house on lot 15 in block 3810 of Chamberlain Park, a subdivision of the city of St. Louis. The lot is on the southwest corner of Etzel and Belt avenues, on each of which is a frontage of about 200 feet. The house which defendant proposed to build is a handsome structure to cost between $25,000 and $30,000. It is to be three stories in height, with a single entrance in the middle of the front elevation, opening into a common hall, from which access is had to each suite or apartment, of which there are three on each side, each occupying the entire floor on that side. There are no porches or other structures on the outside indicating the different apartments. In short, the words "apartment house" used in the petition properly describe it.

One Chamberlain, being the owner of the land in 1887, laid out the subdivision by statutory plat. The Western Realty Company, having acquired it, conveyed block 3810 to John Jackson by deed dated October 5, 1887, in which it was expressly provided that neither the said grantee, nor any one claiming by, through, or under him, prior to the 31st day of December, 1920:

"1. Shall construct or allow to be constructed in the premises above described any dwelling house less than two stories in height.

"2. Shall construct or allow to be constructed more than one such dwelling on each fifty feet front of said lot.

"3. Shall construct or allow to be constructed thereon any dwelling to cost less than four thousand dollars in cash, nor locate or erect such dwelling nearer than thirty feet to the line of the street on which such dwelling fronts.

"4. Shall construct or allow to be constructed any stable, shed or outhouse nearer to any public driveway than one hundred feet.

"5. Shall construct or allow to be constructed or erected or to exist any nuisance or any livery stable or manufacturing establishment of any kind on said premises.

"6. Shall construct or allow to be constructed, used or occupied any grocery store, barroom or business place for the bargain and sale of any kind of merchandise on said premises. To have and to hold the premises hereby conveyed, subject to the exceptions, reservations, conditions and reversions aforesaid."

Both plaintiff and defendant claim by mesne conveyances through Jackson.

Frumberg & Russell, of St. Louis, for appellant. Ephrim Caplan and Rassieur, Kammerer & Rassieur, all of St. Louis, for respondent.

BROWN, C. (after stating the facts as above).

The sole question presented by the parties in this court is whether the erection of the building described would be a violation of any of the restrictive covenants of the deed. Covenants of this character expressed in deeds of conveyance of lands are in the nature of easements reserved by the grantor in the lands conveyed, appurtenant to his other lands. Improvement Co. v. Tower's Ex'r, 158 Mo. 282, 59 S. W. 239; King v. Trust Co., 226 Mo. 351, 126 S. W. 415. In these cases we called it "an easement running with the land." It is, as such, an incumbrance consistent with the passing of the fee by the conveyance in which it is reserved. The curious will find this subject interestingly discussed, with reference to many authorities with which it is unnecessary to incumber this record, in sections 4 and 5 of Berry's "Restrictions on the Use of Real Property." It is useless to waste words in demonstrating that such easements are usually reserved by the grantor in the hope that they will prove valuable to him in the disposition of his land. Being in derogation of the fee conveyed by the deed, such covenants will not be extended by implication to include anything not clearly expressed in them. Zinn v. Sidler, 268 Mo. 680, 187 S. W. 1172, L. R. A. 1917A, 455; Kitchen v. Hawley, 150 Mo. App. 497, 131 S. W. 142; Hutchinson v. Ulrich, 145 Ill. 336, 34 N. E. 556, 21 L. R. A. 391; Hartman v. Wells, 257 Ill. 167, 172, 100 N. E. 500, Ann. Cas. 1914A, 901; Hamnett v. Born, 247 Pa. 418, 93 Atl. 505; Johnson v. Jones, 244 Pa. 386, 90 Atl. 649, 52 L. R. A. (N. S.) 325. The words "clearly expressed," as used by this and other courts, have no significance, unless they mean that if a reasonable and substantial doubt is raised by the words employed in the covenant, it must be resolved against the grantor. Stone v. Pillsbury, 167 Mass. 332, 45 N. E. 768, and cases cited; Johnson v. Jones, supra; Grooms v. Morrison, 249 Mo. 544, 155 S. W. 430; Linville v. Greer, 165 Mo. 380, 65 S. W. 579. It is only by such construction that such titles can be made certain, so that the use of lands conveyed in fee shall not depend upon the diverse opinions of judges as to the minds of the parties to the grant, but restrictions thereon shall appear plainly written in the grant.

This subdivision was platted in May, 1887. On October 5, 1887, the Western Realty Company had acquired it, and on that date conveyed block 3810 to John Jackson, with the restrictions we have quoted. This was an important transaction, involving, according to the evidence, between 2,000 and 3,000 feet of the frontage of the subdivision on Bartmer and Etzel avenues. These restrictions were evolved from the desire of the Realty Company to sell and of Jackson to buy. The company was, so to speak, walking on the top rail of the fence which divided profit from loss — the hoped for advantage to his other lands from the restrictions he might impose, and the loss of the bargain he was making — with only his pen for a balance, and it behooved him to use it carefully to save himself from falling on the wrong side. Mr. Jackson's interest did not lie with his, for restrictions would do him no good. He could create them by his own deeds should he so desire. The result was that the Realty Company, if it ever had the idea of making block 3810 an exclusive residence district, as charged in the petition and argued at bar, abandoned it, and placed in the deed nothing which could, by any logical stretch of the imagination be construed into such a restriction. On the contrary he proceeded, in express terms, to enumerate other structures which he desired to exclude. These were livery stables, manufacturing establishments, grocery stores, barrooms, and business places for the bargain and sale of merchandise. By the operation of the good old maxim, "Expressio unius est exclusio alterius," he excluded all other structures than those mentioned from the category of his restrictive easements. Purchasers under that deed might erect office buildings, hospitals, hotels, boarding houses, churches, homes for the aged and for abandoned infants, and many other structures intended to be used for purposes of business or charity not included in his list. Apartment houses are not referred to unless they come within the description "dwelling house." We gather from the instrument that all these matters were in the minds of the parties when the...