Eichelsbach v. Harding
| Decision Date | 04 February 1958 |
| Docket Number | No. 2,No. 29869,2,29869 |
| Citation | 309 S.W.2d 681 |
| Parties | George Ph. EICHELSBACH, F. A. Cammann, and Earle J. Kennedy, Trustees of 'St. Louis Hills Estates, by Cyrus Crane Willmore' Subdivision (Plaintiffs), Respondents, v. Charles E. HARDING and Edna J. Harding, His Wife (Defendants), Appellants. 9869. |
| Court | Missouri Court of Appeals |
Tralles, Hoffmeister & Gilpin and Fred J. Hoffmeister, St. Louis, for appellants.
Roberts P. Elam, St. Louis, for respondents.
Action for injunctive relief.
Defendants have appealed from the decree; (1), permanently enjoining and restraining them from maintaining a fence along the sides and rear line of their lot; (2), mandatorily ordering them to remove said fence; (3), permanently enjoining them from erecting any fence along the sides or rear line of their property without the written approval of the trustees of the subdivision in which their property is located.
The controversy arose over the alleged violation of a restrictive covenant prohibiting the erection of fences along the sides and rear line of any lot in the subdivision. By stipulation of the parties, it appears that a tract of land in the Southwest part of St. Louis was subdivided into 160 lots, platted and designated as 'St. Louis Hills Estates No. 2 by Cyrus Crane Willmore.' The plat was duly recorded in the Recorder's Office in St. Louis, Missouri. In order that the subdivision might always be desirable for, and used as a residential area exclusively, the subdivider entered into an indenture agreement with the three original trustees establishing certain restrictions, covenants, reservations and conditions for the subdivision. The indenture provided for election of successor trustees, and empowered the trustees on behalf of, and for the benefit of, the owners of lots in the subdivision, to prosecute any proceeding against persons violating the restrictions, etc.
Among the general restrictions with which all lots are burdened is the following:
'No fence (except such ornamental fences as may be approved in writing by the Trustees) shall be erected along the sides or rear line of any lot;' The indenture also provides that 'each of the covenants and restrictions * * * shall attach to and run with each of the lots embraced within such covenants, * * * and shall be binding upon every owner or occupant of such lots as fully as if expressly contained in proper and obligatory covenants or conditions in each contract or conveyance of or concerning any lot * * *.'
Defendants acquired Lot 41 of City Block 6330 in the subdivision on October 7, 1953, by deed which, by reference, contains the same restrictions, covenants, conditions and reservations incorporated in the indenture agreement. So much for the pertinent stipulated facts.
The evidence discloses that in October, 1954, the defendants commenced construction of a dwelling house on their lot. They caused plans thereof to be prepared by an architect, and before actual construction was under way, the plans were submitted to the trustees for their approval. The plans did not disclose that a fence was to be erected on the premises. On or about June 15, 1955, at a time when defendants' house was about completed, they erected metal posts about 1 1/2 inches in diameter, set in concrete, extending about 4 feet above the surface of the ground along the side and rear line of their lot. Trustees Eichelsbach and Cammann saw the posts on the day they were erected, and on the same evening Eichelsbach received calls from persons living in the immediate vicinity, complaining about the erection of a fence in violation of the restrictions. The trustees, in a meeting held the same evening, decided to employ a lawyer in connection with the matter, and within a day or two John C. (now Judge) Casey was retained. By the latter's testimony it appears that on June 17, he not only advised defendant Chas. E. Harding that there was a restriction against fences, but 'tried to talk him into removing the fence.' Harding's response was he 'intended to continue to erect the fence.' Thereafter Judge Casey began the preparation of the petition for injunction, and in connection therewith made the necessary legal research, and investigated title records. The petition prayed for a temporary restraining order making it necessary to obtain a bond. On the morning of June 22, Judge Casey observed the fence posts on defendants' property, but at that time there was no wire attached to the posts. On the same day the petition for injunction was filed, and as a result of the delay in procuring and filing the bond, obtaining issuance of an order to show cause, and certified copies of the restraining order issued by the court, it was nearly five o'clock in the evening before the restraining order was ready for service. Shortly thereafter, service was obtained on defendants, and it was not until after that event that Judge Casey learned that during the day of June 22, the 'cyclone' or 'chain-link' wire had been attached to the posts and the fence completed.
In addition to the foregoing facts concerning which there was little dispute, the uncontroverted testimony established that a 'cyclone' or 'chain-link' fence is not an 'ornamental,' but is strictly a 'utilitarian' fence, and that defendants never made application for or received written permission or approval of the trustees to erect the fence.
We do find a conflict relating to a conversation between Trustee Eichelsbach and Mr. Harding which took place on or about April 21, 1955, and a conversation between Trustee Earle J. Kennedy and Harding which occurred the day after construction of fence was begun. Eichelsbach stated that in his conversation with Mr. Harding the latter said, in substance: 'I'm goin' to build a fence on this property and you're not goin' to stop me; you can't stop me.' To this Eichelsbach replied: 'I can't stop you, but there's restrictions.' Harding's version of this conversation was: 'I told Mr. Eichelsbach that I was going to put up a fence. He said, 'that's perfectly all right; go ahead.'' Regarding the other conversation, it appears that Mr. Kennedy (not at that time a trustee), who had been a friend of Harding for thirty or thirty-five years, called him by telephone and 'I asked Mr. Harding not to put the fence up because it was causing--it was going to cause a lot of commotion in the neighborhood, and I said 'After all, you're goin' to have to live with these people from now on; let's live neighborly, peacefully." In response, Harding 'told me he was going to complete it.' According to Harding, after Kennedy called about the fence he (Kennedy) said, 'Well, I live way down the other end of the block, it's not going to bother me either way.' But Harding admitted that in the same conversation Kennedy did say 'If I were you, I wouldn't put up a fence.'
There was evidence relating to the existence of other fences in the subdivision which will have our attention in disposing of the point raised in connection therewith.
Seeking to set aside the decree of the trial court, defendants advance four contentions. The substance of the first two, which are closely allied, is that the mandatory injunction should not have been awarded because this is not a clear case reasonably free from doubt, and necessary to prevent great and irreparable injury; and since the fence had been completed before the restraining order was served, the preliminary restraining order should have been dissolved, because injunction will not issue to restrain that which has been accomplished. We shall consider and dispose of these together, but in inverse order.
Inasmuch as the purpose of an injunction is not to provide a remedy for what is past, but to prevent future wrongdoing, and since it is not used to compel persons to do right, but to prevent them from doing wrong, rights already lost, and wrongs already perpetrated cannot be corrected by injunction. Lademan v. Lamb Const. Co., Mo.App., 297 S.W. 184; Corken v. Workman, 231 Mo.App. 121, 98 S.W.2d 153; Fugel v. Becker, Mo.Sup., 2 S.W.2d 743; Hurtgen v. Gasche, Mo.App., 227 S.W.2d 494; Hribernik v. Reorganized School District R-3, Mo.App., 276 S.W.2d 596; 43 C.J.S. Injunctions Sec. 22 c. However salutary this rule may be, it does not necessarily follow that it must be applied and the injunction ultimately denied in every case where the wrongful act sought to be prevented has already been consummated. In a case where the defendant ceased commission of the act complained of and nothing indicated an intention to repeat the injury, as was the situation in Lademan v. Lamb Const. Co., supra; or where the sale of real estate sought to be restrained had been consummated prior to trial and cause had become moot, Corken v. Workman, supra; or where right to permanently enjoin secretary of state from making contracts with newspapers for publication of initiative and referendum proposals to be submitted at 1926 election, had become a moot question before final judgment, Fugel v. Becker, supra; or where the main purpose of suit is to restrain officials from collecting taxes and performance had been accomplished prior to final determination of cause, Hurtgen v. Gasche, supra; Hribernik v. Reorganized School District R-3, supra, the court, of necessity, applied the foregoing principle.
But the facts herein are quite different from the cases, including the foregoing, which demanded application of the rule contended for. Here, not only did the petition upon which the cause was tried, call for action restraining defendants from 'maintaining, * * * or continue to * * * maintain a fence,' and for an order mandatorily requiring defendants to remove the fence, but that was the issue that was litigated and tried. By commanding authority, it is now firmly established that a court is vested with power and authority, through its mandatory injunction to compel the undoing...
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