Campbell v. Stout

Decision Date04 November 1966
Docket NumberNo. 8494,8494
Citation408 S.W.2d 585
PartiesA. P. CAMPBELL and Bonnie Lou Campbell, his wife, Leonard H. McFadden and Virginia L. McFadden, his wife, and William Faye Thomason and Esther Mabel Thomason, his wife, Plaintiffs-Appellants, v. Geraldine STOUT and Register R. Byrd, Defendants-Respondents. . Missouri
CourtMissouri Court of Appeals

Dalton, Treasure & Bullard, Kennett, for plaintiffs-appellants.

McHaney, Billings & Welman, Kennett, for defendants-respondents.

HOGAN, judge.

This is an action to enforce building restrictions on a lot located in Kennett, Missouri. The trial court sustained defendants' motion for summary judgment, and the plaintiffs have appealed.

The case is before us on the pleadings, affidavits and exhibits filed; there are no depositions or formal admissions in the transcript. The factual background of the case, gathered from the pleadings, affidavits and exhibits, is as follows: In May 1956, defendant Stout laid out and platted a tract known as Barbara Heights Subdivision to the City of Kennett. The regularity of the dedication is not questioned, and it is unnecessary to describe the layout of the subdivision in detail. Generally, the plat shows that the subdivisions consists of ten lots, laid out from north to south on either side of a central street, which is a cul-de-sac. The central street is open on the south, where it intersects a public highway which runs diagonally in a northeasterly-southwesterly direction along the south side of the subdivision, so that Lot 10, the southernmost lot on the west side of the central street, and Lot 6, which is opposite Lot 10 on the east side, are right triangles, with each hypotenuse abutting the highway. Lot 6 is considerably larger than the other lots and adjoins a motel on the northeast. The words of dedication on the plat include the following paragraph:

"Easements are hereby granted unto the City of Kennett for the benefit of all owners in said subdivision of 10-foot strips of land in width at such points and locations in said subdivision as the City may select and designate by proper survey and plat for the purpose of placing therein, thereon and thereunder, and the maintaining of the same, such necessary poles, wires, pipes, conduits and other equipment for furnishing electricity, heat, light, water, power, gas, or any other public convenience desirable for a residential district; provided, however, the center line of such easements shall conform to the division lot lines and center lines of streets as shown on the plat of said subdivision, and provided the exercise of the rights thereunder does not interfere with any building or improvement located on the subject property, giving to the City of Kennett full rights of ingress and egress for said purposes."

ALfter the subdivision was laid out, Mrs. Stout built her own home on Lot 1. In February 1957, Mrs. Stout executed a contract with Mr. Byrd giving him the option to purchase Lots 3, 5, 8, 9, and 10 in the subdivision, and in March 1957 she executed another, similar agreement concerning Lots 2 and 4. Neither of these two contracts referred to any building restrictions. However, at various times between February 12 and August 19, 1957, Mrs. Stout conveyed all the lots in the subdivision, except her own and Lot 6, to Mr. Byrd by warranty deed, and in each of these conveyances (there were five) there was inserted the following covenant, immediately after the description:

"Subject to the following restrictions: The Party of the second part, his heirs and assigns agree not to erect upon said premises any buildings designed or intended to be used for any purpose or purposes except as a private residence and any said residence shall meet and comply with existing minimum FHA requirements. This provision shall not be contrued to apply to out buildings for domestic purposes to be used in connection with the residence."

Lot 6 was purchased by Mr. Byrd under a somewhat different arrangement. On May 2, 1962, Mrs. Stout and Mr. Byrd executed a lease agreement upon this property, by the terms of which Lot 6 was demised to Mr. Byrd for a period of eight years at an annual rental of $500.00. By this instrument, Mr. Byrd is given an option to purchase the realty at any time during the term upon thirty days' notice. It was agreed that upon exercising the option, Mr. Byrd might deposit the purchase price with a designated escrow agent and receive a warranty deed. It is not clear when the deed to Lot 6 was delivered to Mr. Byrd, but apparently Mrs. Stout executed a conveyance to him covering Lot 6 at the time the lease was executed; in any event, the deed was filed for record May 22, 1965. Neither the lease nor the deed involving Lot 6 contains any restrictive covenant.

Eleven residences have been built in the subdivision, all by Mr. Byrd. Each conforms to the restriction which we have set out, and there is no space for further construction in the subdivision except on Lot 6. The chain of title from Mrs. Stout to Mr. Byrd to the present plaintiffs is not quite complete upon the record, but the plaintiffs have alleged and offered to prove than the covenant mentioned was incorporated either expressly or by reference in all the deeds to all the purchasers to whom Mr. Byrd sold houses. One of the plaintiffs has made an affidavit that defendant Byrd represented to him that the subdivision was restricted. Defendant Byrd, immediately prior to the institution of this action, was engaged in the construction of a medical office building on Lot 6. Other facts and evidentiary detail will be noticed in the course of the opinion.

First, though the parties have not and do not raise the question, we must examine our jurisdiction of the appeal. Taney County v. Addington, Mo.App., 296 S.W.2d 129 (1). As framed, the plaintiffs' action was for an injunction against the construction, or for a declaratory judgment that there were valid building restrictions prohibiting it. There was no prayer for a money judgment, and of course the sole issue presented was validity of the restriction or restrictions. Eilers v. Alewel, Mo., 393 S.W.2d 584, 586 (1). But even though these cases do not involve the title to real estate in the appellate jurisdictional sense, and even though there was no prayer for monetary relief, jurisdiction of the appeal might be vested in the Supreme Court by reason of the amount in dispute, if the money value of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa should the relief be denied, exceeds $15,000.00. Section 477.040, RSMo. (1959), V.A.M.S.; Eilers v. Alewel, supra, 393 S.W.2d at 586 (1); Fleming v. Moore Brothers Realty Co., 363 Mo. 305, 308, 251 S.W.2d 8, 10. A concomitant to this "vice versa" rule is that the record must affirmatively show the value of such relief or loss to be in excess of $15,000.00, independent of all contingencies, and the court may not indulge in speculation or conjecture to determine the amount in dispute for jurisdictional purposes. Dunbar v. Board of Zoning Adjustment, Mo., 380 S.W.2d 442, 445 (2,3); Barnes v. Anchor Temple Ass'n., Mo., 369 S.W.2d 192, 193-194 (1-3); Long v. Norwood Hills Corp., Mo., 360 S.W.2d 593, 596-597. The plaintiffs' single allegation or statement concerning the money value of the relief sought, should it be granted or denied, is found in an affidavit made by one of the plaintiffs which contains the statement that defendant Byrd told him the proposed construction would depreciate the value of the individual plaintiffs' homes. We may not therefore estimate the value of the relief sought to the plaintiffs in terms of an increase or decrease in the value of their property. However, the plaintiffs' petition alleged that "either defendant Geraldine Stout or defendant Register R. Byrd are erecting . . . a clinic for four doctors." One of defendant Byrd's affidavits was that the planned construction would cost in excess of $40,000.00. One of the plaintiffs' counter-affidavits contained a statement that the building permit issued by the City of Kennett to Byrd looked to the construction of a clinic for four doctors at a cost of $24,500.00. The plaintiffs represented in another affidavit that only a part of the foundation and a part of the plumbing work had been completed, and further represented that defendant Byrd had stated, "I'm certainly glad you stopped me when you did so I didn't get more money involved in this project."

Superficially, it might appear that this appeal involves a sum of money beyond our jurisdiction, particularly if we measure the loss of profit to the defendant should the relief be granted or denied by the value of the building Byrd planned to construct. By that measure he is either granted or denied the right to improve Lot 6 with a building ostensibly worth $24,500.00 or $40,000.00, either of which sums would remove the cause from our jurisdiction. Nevertheless, the requirement of an affirmative...

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