Bolin v. Tyrol Investment Co.
| Decision Date | 02 February 1918 |
| Parties | MINNIE T. BOLIN, Appellant, v. TYROL INVESTMENT COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.
Affirmed.
A. M Frumberg and A. R. Russell for appellant.
(1) The erection of an apartment, consisting of six separate family dwellings, is violative of a restriction that not more than one dwelling shall be erected on a specified tract. Sanders v. Dixon, 114 Mo.App. 239; Thompson v Langan, 154 S.W. 808. (2) An apartment house is a number of dwellings, and the erection of such a building is a violation of a restriction against the erection of more than one dwelling. Sanders v. Dixon, 114 Mo.App. 229; Thompson v. Langan, 172 Mo.App. 64; Bolin v. Tyrol Investment Co., 178 Mo.App. 1; Schadt v. Brill, 173 Mich. 647; Harris v. Roraback, 137 Mich. 292; Rodgers v. Hosegood, 2 Ch. 388; Kingston v. Busch, 142 N.W. 754; Bagnall v. Young, 151 Mich. 69.
Ephrim Caplan and Rassieur, Kammerer & Rassieur for respondent.
(1) Restrictive covenants being in derogation of the right to the unrestricted use of property are to be construed strictly against the parties seeking to enforce them, and they will not be extended by implication to include anything not plainly prohibited. Zinn v. Sidler, 268 Mo. 689; Kitchen v. Hawley, 150 Mo.App. 503; Pank v. Eaton, 115 Mo.App. 176; Hartman v. Wells, 257 Ill. 167. Where the grantor enters into detail, specifying certain matters as prohibited, it is to be presumed, if nothing to the contrary appears, that buildings of a character not thus excluded are intended as a proper use of the property. All doubts are to be resolved in favor of the free and untrammeled use of the property and against restrictions. Underwood v. Herman, 82 N.J.Eq. 353; Kitchen v. Hawley, 150 Mo.App. 447, 503; Hutchinson v. Ulrich, 145 Ill. 336; Hunt v. Held, 90 Ohio St. 280; St. Andrew's Appeal, 67 Pa. 512. (2) Restrictions as to construction and restrictions as to user are different and distinct, and a restriction against a plural structure will not be construed to prohibit a plural use of a single structure unless such intention is clearly expressed. Hamnett v. Born, 247 Pa. 418; Arnoff v. Williams, 113 N.E. 661; Pank v. Eaton, 115 Mo.App. 176; Land Co. v. Inv. Co., 169 Mo.App. 723; Dutch Church v. Bldg. Co., 214 N.Y. 268. (3) Where the restriction has reference only to the construction of a permitted structure and the language employed describes the building which may be erected in terms which have a general significance and the restriction makes no reference to the use of the structure, then the terms employed will be given their usual and ordinary meaning. Pank v. Eaton, 115 Mo.App. 176; Kitchen v. Hawley, 150 Mo.App. 503; Hamnett v. Born, 247 Pa. 418; Hutchinson v. Ulrich, 145 Ill. 336. And a narrow and restricted meaning will not be given unless such intention is clearly expressed in the deed. McMurty v. Phillips, 103 Ky. 308; Arnoff v. Williams, 113 N.E. 661; Fortesque v. Carroll, 76 N.J.Eq. 583. (4) The term "dwelling house" is a general term merely descriptive of a structure suitable for human habitation, irrespective of how it may be occupied, and one dwelling house may be so constructed as to contain separate apartments, each of which may constitute a dwelling, yet the whole be in fact but one structure. Berry on Restrictions, sec. 95; Johnson v. Jones, 244 Pa. 389; Dutch Church v. Bldg. Co., 214 N.Y. 268. An apartment house is a "dwelling house" and does not violate a restriction prohibiting the erection of more than one dwelling house on a single lot. Hamnett v. Born, 247 Pa. 418; Arnoff v. Williams, 113 N.E. 661; Sonn v. Heilberg, 38 A.D. 515, 56 N.Y.S. 341; Holt v. Fleischman, 75 A.D. 593, 78 N.Y.S. 647; Bates v. Logeling, 137 A.D. 578, 122 N.Y.S. 251; Stone v. Pillsbury, 167 Mass. 332; Hutchinson v. Ulrich, 145 Ill. 336.
OPINION
In Banc.
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 Fifteen 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 two hundred 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 described 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 anyone claiming by, through or under him, prior to the 31st day of December:
Both plaintiff and defendant claim by mesne conveyances through Jackson.
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 Exr., 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 four and five 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; Kitchen v. Hawley, 150 Mo.App. 497, 131 S.W. 142; Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556; Hartman v. Wells, 257 Ill. 167, 172, 100 N.E. 500; Hamnett v. Born, 247 Pa. 418, 93 A. 505; Johnson v. Jones, 244 Pa. 386, 90 A. 649.] 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 two and three thousand 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...
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