Britton v. School Dist. of University City

• Decision Date: 20 November 1931
• Citation: 44 S.W.2d 33,328 Mo. 1185
• Parties: Frederick H. Britton and Jessie M. Britton, Appellants, v. School District of University City et al.; Robert D. McClure and Leona McClure, Interveners, Appellants
• Court: Missouri Supreme Court

44 S.W.2d 33

328 Mo. 1185

Frederick H. Britton and Jessie M. Britton, Appellants, v. School District of University City et al.; Robert D. McClure and Leona McClure, Interveners, Appellants

Supreme Court of Missouri

November 20, 1931

Appeal from St. Louis County Circuit Court; Hon. G. A Wurdeman, Judge.

Reversed and remanded (with directions).

Daniel Bartlett for appellants.

(1) The restrictions and limitations against the use of lots 1 and 2 in block 2 for school purposes create and vest in the plaintiffs and interveners a right of property, an easement in and to each of said lots which is appurtenant to their own respective lots. Peters v. Buckner, 288 Mo. 618, 17 A. L. R. 543, 232 S.W. 1027. (a) Likewise, the easement created by the declaration of trust and agreement over and upon the private right of way known as Cornell Avenue was impressed for the common benefit of all lot owners in the subdivision, including plaintiffs and interveners. Peters v Buckner, supra. (b) Such rights of property a court of equity will act by injunction to protect. Pierce v. Union Trust Co., 278 S.W. (Mo. Sup.) 398. (2) The "defense" offered by defendants that the property of plaintiffs and interveners will be benefited more by violation of restrictions than by some of permitted uses is without merit. A school building, with auditorium, gymnasium manual training school and the like, attracting large gatherings of parked automobiles, will constitute a nuisance. State ex rel. Oliver Cadillac Co. v. Christopher, 298 S.W. (Mo. Sup.) 720; Village of Euclid v. Ambler Realty Co., 272 U.S. 365. Furthermore, a party may not make a solemn engagement, and then disregard it on the plea that no harm will result to other parties thereto. Spahr v. Cape, 143 Mo.App. 114; St. Louis Safe Dep. Bank v. Kennett Estate, 101 Mo.App. 370; Pierce v. Trust Co., 278 S.W. (Mo. Sup.) 409. (3) The vote of a majority of the property owners in the school district could not deprive plaintiffs and interveners of their property. It was not shown that the attitude of complaining parties was known to defendants or that they relied upon or were influenced by that attitude. In fact, defendants were wholly indifferent to any acts, conduct, or attitude of complainants. Under such circumstances, there could be no estoppel. St. Louis Safe Dep. Bank v. Kennett's Estate, supra; Spahr v. Cape, supra. (4) The violation of restrictions in other blocks in the subdivision could not excuse or justify defendants' violation of these restrictions with respect to lots 1 and 2 in block 2. Compton Hill Imp. Co. v. Strauch, 162 Mo.App. 85; Spahr v. Cape, supra; St. Louis Safe Dep. Bank v. Kennett Estate, supra. Especially is this true where, as here, there was no evidence that complainants had any knowledge of such violation elsewhere. Miller v. Klein, 177 Mo.App. 572. (5) Here, there has been a taking of private property by an agency of the State, namely, the school district of University City, without compensation and without due process of law. Mo. Constitution, Art. 2, sec. 21; U.S. Constitution, 14th Amendment, sec. 1; Peters v. Buckner, 323 S.W. (Mo. Sup.) 1027; Chicago v. Railroad Co., 166 U.S. 236.

Holland, Lashly & Donnell, Jacob M. Lashly and M. P. Phillips for respondents.

(1) The reservations, if any, with respect to the use of lots 1 and 2 of block 2 were for the benefit of the grantor and not enforceable at the instance of plaintiffs. Toothaker v. Pleasant, 315 Mo. 1239. (2) Plaintiffs are violating the record restrictions and do not come into equity with clean hands and are, therefore, entitled to no relief. Compton-Hill Improvement Co. v. Strauch, 162 Mo.App. 85. (3) Plaintiffs have been guilty of laches and are estopped by their conduct to complain of the use of lots 1 and 2 in block 2 for school purposes. Compton-Hill Improvement Co. v. Strauch, 162 Mo.App. 84; Lyons v. School District, 311 Mo. 349. (4) The damage, if any, to appellants' property, is so far disproportionate to the damage the school district will sustain by granting the relief prayed for by appellants, as to be unconscionable, and equity in such a case will deny petitioner injunctive relief. Bailey v. Culver, 84 Mo. 531; St. Louis Safe Deposit & Savings Bank v. Kennett Estate, 101 Mo.App. 395; Schopp v. Schopp, 162 Mo.App. 558; Forsee v. Jackson, 192 Mo.App. 408; Lyons v. School District, 311 Mo. 349. (5) The school district possessing the power of eminent domain could by such proceedings remove restrictions, if any, prohibiting the use of property for school purposes. In this event only money judgment could be given. Equity should, therefore, in view of the public interest, refrain from granting injunctive relief, but should leave plaintiff to resort to a common-law action for damages, if any they have sustained. Second Street Improvement Co. v. Ry. Co., 255 Mo. 519; Horine v. Peoples Sewer Co., 200 Mo.App. 237.

OPINION

Gantt, P. J.

This came to me on re-assignment. Plaintiffs and interveners seek to enjoin the school district of University City and its board of education from erecting a school building on certain lots and a private street (Cornell Avenue) in University Heights, a division of said city, and from using any building erected thereon as an auditorium, gymnasium or for other public school purposes. They alleged that the erection of the building thereon would violate certain building restrictions. No temporary injunction or restraining order was prayed for or granted. After service of summons, defendants proceeded with the work, and at the time of trial the building had been completed at a cost of $ 170,000. Defendants admitted the building would be an auditorium and used for public school purposes. The court found the issues in favor of defendants on plaintiffs' and interveners' petitions, and in favor of plaintiffs and interveners on defendants' cross-bill. Plaintiffs and interveners appealed. Defendants did not appeal. Therefore, we only consider questions presented on plaintiffs' and interveners' petitions and defendants' answer.

The petitions are conventional, alleging the imposition of restrictive covenants on the lots and Cornell Avenue, the violation thereof by defendants, that plaintiffs and interveners are without adequate remedy at law, and praying injunctive relief. The answer admitted the validity of the instrument imposing the restrictions, but denied violation thereof, and pleaded certain affirmative defenses.

University Heights Realty & Development Company (herein designated Company) owned a tract of land in St. Louis County. It laid out and subdivided the land into blocks and lots with private streets, designating it University Heights, and caused a plat thereof to be recorded in the office of the Recorder of Deeds of said county. Thereafter it executed and recorded in said office an instrument designated "Declaration of Trust & Agreement," imposing on said lots and private streets the restrictions under consideration.

Plaintiffs and interveners own residence property in University Heights. They contend that the erection of the building and its use as an auditorium and gymnasium is a violation of building restrictions imposed on said lots and Cornell Avenue by the trust agreement.

The restrictions on these lots were considered by the St. Louis Court of Appeals in Bub v. McFarland, 196 S.W. 373. A part of the plat of University Heights will be found in that opinion. The building in question is located on a part of lot one in block two and a part of Cornell Avenue located south of lots one and two in said block. Interveners' residence is located on lot three in block two. Plaintiffs' residence is located on lots two and three in block three.

I. Defendants contend that the use of lots two and three of block three by plaintiffs for residence purposes is a violation of restrictions, and for that reason plaintiffs are in court with unclean hands.

Under the trust agreement said lots are reserved for public school purposes. However, the company was given the right to determine if they should be used for public school or residence purposes. It determined the question by conveying them to individuals instead of conveying them to the school district. It follows that plaintiffs were authorized to use the lots for residence purposes.

II. Defendants claim title to Cornell Avenue by quitclaim deed. Under the trust agreement trustees were vested with the legal title to private streets impressed with an easement for the common benefit of persons who own or occupy said lots. They are authorized and charged with the duty to repair, maintain and improve said streets. They are also authorized (if they should conclude that such action will be for the benefit of the owners of lots) to dedicate one or all of said streets for public use. The trustees conveyed Cornell Avenue to the school district by quitclaim deed in exchange for a portion of lot two in block two, to be used for street purposes.

It is argued that the conveyance was a dedication of Cornell Avenue to public use. It was for public use, but not such use as contemplated by the parties to the trust agreement. If this conveyance is valid, it follows that the trustees are authorized to convey all of said streets for such or similar use. It is clear they are only authorized to dedicate private streets for public use as public streets. And the authority to improve streets did not authorize the trustees to trade a street on the theory of improving another street. The school district acquired no interest in Cornell...