Coughlin v. Barker

• Decision Date: 02 June 1891
• Citation: 46 Mo. App. 54
• Parties: JOHANNA M. COUGHLIN et al., Respondents, v. JOHN BARKER, Appellant.
• Court: Missouri Court of Appeals

46 Mo. App. 54

JOHANNA M. COUGHLIN et al., Respondents, v. JOHN BARKER, Appellant.

St. Louis Court of Appeals

MARCH TERM, 1891

June 2, 1891

1. Conveyances : EASEMENTS : BUILDING RESTRICTIONS. If the owner of several adjoining lots conveys one of them with a restriction as to the manner of building thereon, and subsequently conveys another, and if said restriction was intended for the benefit of the last-mentioned lot, and not merely as a covenant for the benefit of such owner personally, the grantee of said last-mentioned lot and his assigns can enforce said restriction against every owner of said first-mentioned lot, acquiring title under or through said conveyance of the same, and taking with notice, actual or constructive, of the restriction.

2. — : — : —. In order to render the restriction thus enforceable, it is not essential that the conveyance creating it should express the intention to make it for the benefit of the adjoining land, nor need it be reciprocal; that is, it is not necessary that there should be a similar restriction as to the adjoining land ; but the absence of such expression of intention, and even more the absence of such mutuality of restriction, is an evidentiary circumstance tending to show that the restriction was intended by the grantor of the lot subject thereto for his own benefit personally, and not for the benefit of adjoining land retained by him.

3. — : — : —. The question, whether such an easement is a personal right, or is to be construed as appurtenant to some other estate, is generally to be determined by the fair interpretation of the grant or reservation creating it. aided if necessary by reference to the situation of the property and the surrounding circumstances.

4. — : — : — : BURDEN OF PROOF. "When a grantee of adjoining land seeks to enforce the restriction, the burden is on him to establish the requisite intention on the part of the grantor of the conveyance by which it is created, and further the requisite notice to the owner of the lot subject to it, against whom the enforcement is sought. And held that the terms of the conveyance in the case at bar, when construed with reference to the extrinsic circumstances shown in evidence, did not establish the necessary intention, but only established such an intention conditionally ; that is, an intention dependent upon circumstances which never occurred.

Appeal from the St. Louis City Circuit Court.—HON. DANIEL DILLON, Judge.

REVERSED AND REMANDED.

T. K. Skinker, for appellant.

Boyle, Adams & McKeighan, for respondents.

THOMPSON, J.—This is an action in the nature of a suit in equity to restrain the defendant from erecting a house within thirty feet of the lot, adjacent to a lot owned and built upon by the plaintiffs. The court granted the relief prayed for, and the defendant appeals. It appeared from the pleadings and evidence that the plaintiffs held their lot by various mesne conveyances from James M. Carpenter, and that the original deed from Carpenter contained the restriction, that no building should be erected on the lot nearer than thirty feet to the south line of Hogan avenue, which is now Morgan street. It also appeared that the defendant acquired the lot, on which he proposes to build, by various mesne conveyances from Carpenter, and that the original deed from Carpenter contained a similar building restriction.

More fully stated, the petition alleged and the evidence showed that, on and prior to the seventeenth of February, 1875, James M. Carpenter was the owner of a parcel of land fronting one hundred and ten feet on the south side of Morgan street, of which parcel a particular description is given in the petition ; that, on that day, he conveyed to defendant the east fifty feet of this parcel by a conveyance, which contained a provision that "none other than a stone-front dwelling-house should be erected on said fifty-foot lot, and that no building should be erected on it within thirty feet of Morgan street ;" that on the eleventh of August, 1877, Carpenter conveyed to Charles M. Espy another portion of his one hundred and ten feet, being the thirty feet next west of the fifty feet already conveyed to the defendant ; that this conveyance contained a provision, that "a building shall not be erected on the lot conveyed nearer than thirty feet from the line of Morgan street, and that the penalty in case of failure to comply shall be reversion to the grantor ;" that by mesne conveyances, which are fully set out, the title to this thirty feet passed to defendant, thus showing him to be the owner of the east eighty of the one hundred and ten feet ; that, on the eleventh of August, 1877, Carpenter conveyed to Moore, as trustee for Mrs. Field, the remaining thirty feet of the one hundred and ten feet by a deed, which contained a provision that no building should be erected on the lot conveyed within thirty feet of Morgan street ; that by mesne conveyances, which are fully set out in the petition, plaintiff Johanna acquired the title of Moore and Mrs. Field to this lot ; that plaintiff received her deed with knowledge and on the faith of the restrictions contained in the original deeds' from Carpenter ; that plaintiffs have erected a dwelling-house on their lot, set back thirty feet from Morgan street ; that defendant has recently made an excavation covering his entire lot, and is about to erect on it buildings fronting on Cabanne and extending northward to the south line of Morgan street ; that, as soon as defendant began his excavation, plaintiffs notified him that they would insist on his observing the building line ; but that defendant nevertheless was proceeding to build regardless of the line.

It also appears that the lot of defendant lies immediately east of the lot of the plaintiff. The lot lying immediately west of the lot of plaintiff was originally granted by Carpenter, but without any such building restrictions. It appeared in evidence that the city block, in which the lots of the plaintiff and the defendant are situated, originally extended from Grand avenue on the east to Vandeventer avenue on the west, having a frontage of about twenty-two hundred and forty-four feet on the south side of Hogan avenue. Of this frontage, about fifteen hundred and eighty-four feet were owned by Carpenter, about five hundred and fifty feet by one Kaime, and about one hundred and ten feet by one Hereford. The evidence was to the effect that Carpenter, desiring to make of his property a high-class residence property, and with the view of enhancing the price which he should obtain for the lots, determined to insert certain building restrictions in the deeds of lots conveyed by him, and that among these building restrictions was one, that no dwelling should be erected so that its front line should be nearer than thirty feet from the south line of Hogan avenue. It further appeared that the other proprietors of the ground, already described, did not concur with Carpenter in his scheme. It also appeared that the proprietors on the opposite side of Hogan avenue declined to face their lots upon Hogan avenue so as to make an elegant street of that avenue, but persisted in building with their houses faced toward the north, so that the rear of their houses and their back yards were presented to the front view of the dwellers on the south side of Hogan avenue, including the plaintiffs and defendant. Then came a subsequent improvement in the form of a cable railway, which was extended through Hogan avenue, and which had the effect of introducing such noise, dirt and traffic as to make the place in question generally undesirable as residence property. In the meantime Carpenter, finding himself unable to carry out his scheme, conveyed various lots by deeds which contained no building restrictions whatever ; so that out of ten other lots conveyed, aside from those acquired by the plaintiffs and the defendant, amounting in the aggregate to six hundred and one out of his fifteen hundred and eighty-four feet, seven contained no building restrictions whatever, while only three provided that no building should be erected nearer than thirty feet to the street. One of the two provided, in addition, that no stable should be erected nearer than forty feet, and one provided that no stable should be erected nearer than fifty feet from the street. Of the seven conveyances which contained no building restriction, one conveyed the lot adjoining the plaintiffs' lot on the west, and another conveyed the lot adjoining the defendant's lot on the east; but this has since become Cabanne street. Since Carpenter attempted this scheme of improvement, a new street has been put through the property north and south midway between Grand avenue and Vandeventer avenue, called Cabanne street. Carpenter himself still retains much of the land originally owned by him, and on a portion of it he had built a residence house for himself. This house lies to the east of the plaintiffs' lot, and Cabanne street and three other building lots, including that of the defendant on which he now proposes to build, intervene. Before taking any steps to erect this building which is now sought to be enjoined, the defendant, proceeding upon the conception that the building restriction in the original deed from Carpenter, under which he held, was intended for Carpenter's sole benefit, procured the consent of Carpenter that he might build up to the line of Morgan street ; and, after the commencement of this action, he obtained from Carpenter a deed releasing him from the restrictive covenant in Carpenter's original deed.

It appears very clearly from the evidence that Carpenter conceived the plan, in the year 1875, of making this a very desirable residence property ; but that, in order to do so, he had to have the concurrence of several proprietors, including the Vandeventer heirs, who owned the property on the north side of Hogan avenue ; that he failed to obtain the concurrence of the...