Compton Hill Improvement Company v. Strauch
| Decision Date | 05 December 1911 |
| Parties | COMPTON HILL IMPROVEMENT COMPANY et al., Respondents, v. JOHN B. STRAUCH, Appellant |
| Court | Missouri Court of Appeals |
Submitted on Briefs November 9, 1911.
Rehearing Denied 162 Mo.App. 76 at 87.
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
Lyon & Swarts and Dwight D. Currie for appellant.
(1) The covered platform directly in front of the main entrance of appellant's residence does not violate any restrictions imposed upon appellant's lot and is permissible under that clause of the restrictions covering his lot which says that "the steps and platform in front of the main door may extend over said building line not to exceed eight feet." (2) A court of equity will not lend its aid to restrain the violation of restriction upon land when it appears that such restriction was inserted in the deed as parcel and in pursuance of a general plan of improvement which has since been abandoned by those in whose favor the covenant was executed and who are seeking to enforce the same. Every relaxation which the plaintiff has permitted in allowing houses to be built in violation of the covenant amounts pro tanto to a dispensation of the obligation intended to be contracted by it. He who would invoke the aid of a court of equity must come into court with cleans hands. Scharer v. Pantler, 127 Mo.App. 433; James v Irvine, 140 Mich. 379; Tillotson v. Gregory, 114 N.W. 1025; Improvement Co. v. Tower, 158 Mo. 282; Olcott v. Sheppard Knapp & Co., 96 A.D. 281; Ewerston v. Gerstenberg, 186 Ill. 344; Thorburn v. Morris, 75 A. 757; Bullitt v. Hinchman, 227 Pa. 197; Loud v. Pendergast, 206 Mass. 122; Zelman v. Kauffherr, 73 A. 1048; Land and Improvement Co. v. Adams, 66 A. 180. (3) Injunction lies only for a threatened wrong for which no adequate legal remedy is afforded, and a court of equity will not issue an injunction to prevent the performance of an act already consummated. Carlin v. Wolff, 154 Mo. 539; Davis v. Hartwig, 195 Mo. 398; Brier v. Bank, 225 Mo. 683; Railroad v. Mining Co., 138 Mo.App. 133.
Edward C. Kehr for respondents.
(1) It can never be successfully claimed that the restrictions of a district have been relaxed or abandoned unless the changes in and surrounding it, have been such that the decree of the court of equity would be ineffectual to put or keep the district in the condition which it was the object and purpose of the restrictions to create; for instance, when the general current of business has reached and passed the restricted premises, the change being permanent, no decree can restore the residence character of the district and therefore, none will be granted. Trustees of Columbia College v. Thatcher, 87 N.Y. 311. (2) For the violation of a building restriction, a mandatory injunction is the proper remedy. Meriwether v. Joy, 85 Mo.App. 634; Bank v. Kennett Est., 101 Mo.App. 370; Sanders v. Dixon, 114 Mo.App. 229; Semple v. Schwarz, 130 Mo.App. 65.
An association was incorporated in 1888 under the name of Compton Hill Improvement Company, which appears to have been formed and incorporated for the purpose of acquiring, laying out, and improving a certain tract of land in the city of St. Louis, the subdivision known as "Compton Heights." A plat of the subdivision was filed in which a building line is marked as being thirty feet from the front of the lot. The association was incorporated for ten years. After laying off this subdivision it was improved by the construction of streets, alleys, pavements, sewers, lights, etc. At the end of its corporate term, that is, the 1st of June, 1898, the members of the company took out a new certificate of incorporation under the same name as that of the old one. A part of the plan for the improvement and maintenance of Compton Heights was the maintenance of the building line as above and the imposition upon each lot sold in the subdivision of conditions and restrictions in the use of the lots for the common benefit of all owners of lots in the subdivision, such as the cost of the buildings, their use and occupancy exclusively as dwellings, etc. It also appears that the association obligated itself not to convey any lot in the subdivision save upon the restrictions and subject to the conditions common to all. It was in evidence that all conveyances made by both the old and the new corporations were made subject to these restrictions. In the deed which was made to the grantor of defendant, the restriction, in substance, is that the building line is established at an average of thirty feet from the north line of Russell avenue. It is provided that the grantee shall conform to that building line as shown on the plat of the subdivision, "and no building or any part or portion thereof shall, at any time, be erected or placed upon the space between said building line and said street; nor shall any projection of said building of whatever character be permitted to extend into or encroach upon said space, except that the steps and platform in front of the main door may extend over said building line not to exceed eight feet." It is further provided in the deed to the grantor of defendant, as it appears was also provided in all other deeds to these lots from the association, that the grantee accepts the conveyance, "subject to the easements, restrictions and conditions above set forth," and further covenants that he, his heirs and assigns, will forever faithfully observe and perform them, and if he or they shall violate or attempt to violate or omit to perform or observe any of them, it shall be lawful for any person owning a lot in Compton Heights, which is subject to the same restrictions or conditions in respect to which default is made, to institute and prosecute appropriate proceedings at law or in equity for the wrong done or attempted, and it is further covenanted that neither the grantee nor those claiming under him or the Compton Hill Improvement Company will make any conveyance or otherwise dispose of any lot in Compton Heights without restricting the building to be erected thereon to the building line of the lot as shown on the plat, "except that the steps and platform in front of the main door may extend over said building line not to exceed eight feet."
The defendant, appellant here, acquired a lot in Compton Heights, known as lot 3, in block 8 of Compton Heights, and in city block 1306, of the city of St. Louis, the deed of date October 16, 1907. The deed to appellant refers to the lot as the same property acquired by appellant's grantor from the Compton Hill Improvement Company, by deed dated December 18, 1893, and recorded in the office of the recorder of deeds in book 1195, at page 221, and then continues, "to the building restrictions and easement in which said deed contained and set forth this conveyance is made subject." After acquiring this lot appellant proceeded to erect a building on it and it was in course of erection in July, 1908, when on the 20th of that month one of the plaintiffs addressed him a letter, in which letter this plaintiff informed appellant that he was told that appellant was building on Russell, east of Compton, and that he contemplated putting a porch in front, contrary to restrictions and the writer expressed the hope, as an owner in the block and as vice-president of the Compton Hill Improvement Company, that that was not the case, and that if the porch was being put on by anyone it would lead to litigation and that the one now there should be removed. The letter also suggested that defendant examine his deed and he would see that the writer was correct. Plaintiff testified that at the time he received that letter, he had not been informed or warned by anybody that the porch that he was erecting in front of his residence was in violation of the restrictions; that he had seen porches on other buildings in the addition that had been constructed prior to this time and that when he received this letter all that was necessary to complete the porch was to put on the slate roof; that his house stood on the building line, was flush with it; that the porch is over the building line about eight feet, the dimensions of the porch being eight feet deep and ten feet wide, the porch covering the front door. He further testified that as he stood on Russell avenue, on which this lot fronts, and looked down to Nebraska avenue, he could see covered porches on residences projecting from the fronts of other houses.
Defendant refusing to remove the roof and columns supporting it from the porch, this action was instituted by the Compton Hill Improvement Company and a number of owners of lots in that subdivision. Praying for an injunction restraining defendant from erecting or completing the porch or portico, and from maintaining it or any encroachment whatever upon the space between the building line and the street, the plaintiffs also prayed that the court, upon the hearing of the cause, by its decree and mandatory injunction would command or compel defendant to remove the porch or portico and every part thereof, so far as the same or any part of it encroached upon the eight foot space, and would perpetually enjoin and restrain defendant from at any time constructing or maintaining the porch, portico or other encroachment upon that space, and for general relief.
Defendant answered this by a general denial and by the further special plea that all the improvements...
To continue reading
Request your trial