Eilers v. Alewel

• Decision Date: 13 September 1965
• Docket Number: No. 2,No. 50620,50620,2
• Citation: 393 S.W.2d 584
• Parties: Fern L. EILERS, Plaintiff-Appellant, v. Frank H. ALEWEL et al., Defendants-Respondents
• Court: Missouri Supreme Court

Page 584

393 S.W.2d 584

Fern L. EILERS, Plaintiff-Appellant, v. Frank H. ALEWEL et al., Defendants-Respondents.

No. 50620.

Supreme Court of Missouri, Division No. 2.

Sept. 13, 1965.

Forrest Boecker, John P. McCammon, St. Louis, for appellant.

Gilbert Weiss and Martin Rosenberg, St. Louis, Sanford Goffstein, St. Louis, of counsel, for respondent, Irma P. Hannegan.

Joseph A. Kirkwood, St. Louis, for respondents, Mary Purcell Kirkwood and Joseph A. Kirkwood.

David L. Millar, St. Louis, for respondents, Walter S. Haase and Dorothy Haase.

James S. McClellan, St. Louis, for respondents, Frank H. Alewel and Walter C. Haeussler, Successor Trustees, William A. Kottmeyer, Lucille K. kottmayer, James S. McClellan, Delphine McClellan, Walter C. Haeussler, Jane C. Haeussler, Roberts L. Prufrock, Mrs. B. H. Bristow Draper, Jr., Frank H. Alewel, Elvira Alewel, Dorothy H. Honig, George A. O'Sullivan, Marie R. O'Sullivan, Paul B. Jamieson and Harrison L. Winter, Trustees, and Mercantile Trust Co.

William M. Ward, St. Louis, for Episcopal-Presbyterian Foundation for Aging.

Roger L. Scherck, St. Louis, for respondent, Gordon Scherck, Jr.

John A. Joyce, St. Louis, for respondents, Clifford J. Brennan, Catherine P. Brennan, Rose Marie Brennan Pashos, Thomas Pashos and James Brennan.

Thos. J. Neenan, City Counselor, and Aubrey B. Hamilton, Associate City Counselor, St. Louis, for City of St. Louis.

C. C. Allen, Jr., St. Louis, for respondent, Boatmen's Nat. Bank of St. Louis.

BARRETT, Commissioner.

Mrs. Eilers, the owner of four unimproved lots in the Catlin Tract, facing Forest Park and fronting 400 feet on Lindell Boulevard with a depth of 530 feet to either the Wabash Railroad right-of-way or the Rock Island Highway, instituted this action in equity to have the restrictions in a 1908 trust indenture relating to the subdivision declared void. The Catlin Tract is 7481.9 feet long, originally there were 67 one hundred foot lots in the subdivision, and between Skinker and Union Boulevards there are 39 single-family residences, most of them occupying more than one lot. In addition to the City of St. Louis and the three successor trustees under the trust indenture the other 39 defendants are the owners of or represent other lot owners and residences in the subdivisions. Mrs. Eilers proposes to dispose of her lots to a group of people who if the restrictions are declared invalid will build a high-rise apartment in the subdivision. The city, the trustees and a large majority of the resident defendants seek to uphold and enforce the restrictions which exclude use of any part of the tract for 'business or profession' including 'flats and apartments.' Under the trust indenture and the restrictions construction is limited to single dwellings upon not less than 100 feet of land and costing not less than $12,500. The relief prayed by Mrs. Eilers was that the court 'render its decree declaring the restrictive covenants on the use of her said property * * * to be null and void, and unenforceable.' After an exhaustive hearing the court found all issues in favor of the defendants and accordingly entered a judgment dismissing the plaintiff's action and she has perfected her appeal to this court.

Neither the appellant's jurisdictional statement (Civil Rule 83.05(b), V.A.M.R.) nor the respondents' ill-advised motion to dismiss the appeal or their motion to transfer to an appellate court (RSMo 1959, Sec. 477.080, V.A.M.S.) meets the standards of the rules and statutes relating to briefs or jurisdictional statements and neither party has cited a single case or other authority in support of their conflicting assertions that jurisdiction of the appeal is or is not in this court. It is not necessary here, however, to spell out all the jurisdictional problems, it has been definitely settled, contrary to the appellant's assertion, that 'in an injunction suit of this nature title to real estate is not involved in the constitutional (jurisdictional) sense.' Barnes v. Anchor Temple Association, Mo., 369 S.W.2d 192, 193. On the other hand, as the respondents point out, if the cause ever involved the construction of a constitution or any problem in constitutional law, it was not presented to the trial court in a motion for a new trial and therefore jurisdiction of the appeal is not properly in this court for that asserted reason. Barnes v. Anchor Temple Association, supra. There was no prayer or allegation for monetary relief, there is no issue in the case with respect to money and it is not possible that a money judgment could ever be entered or that the case would ever in fact involve an 'amount in dispute' (Const.Mo. Art. 5, Sec. 3, V.A.M.S.) within this court's monetary jurisdiction. V.A.M.S. Supp. 477.040. As a matter of fact the sole issue in this equity suit, either for an injunction or for a declaratory judgment, is the validity or invalidity of the restrictions. Emerson Electric Mfg. Co. v. City of Ferguson, Mo., 359 S.W.2d 225. Nevertheless one or more witnesses testified that the highest and best use of Mrs. Eilers' four lots, 400 front feet on Lindell Boulevard, was a high-rise apartment complex, that the value of the lots (with the restrictions) for residential use was $100 to $150 a front foot while (without the restrictions) the value of the lots for apartment-house purposes was $1000 to $1500 a front foot. And so applying what has come to be known as the four-pronged 'vice versa principle' (1964 Wash.L.Q. 424, 689) the case involves a sum of money within this court's monetary jurisdiction. 'There is testimony that the value of the three lots involved is over $65,000, freed of the restrictions sought to be enforced, and that with them on the land it is worth only about $13,000. This evidence and the photographs plainly show the pecuniary amount involved reaches within the jurisdiction of this court.' Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 11, 40 S.W.2d 545, 550; Veal v. City of St. Louis, 365 Mo. 836, 839, 289 S.W.2d 7, 9; Fleming v. Moore Bros. Realty Co., Inc., 363 Mo. 305, 208, 251 S.W.2d 8, 10; Cowherd Development Co. v. Littick, 361 Mo. 1001, 1007, 238 S.W.2d 346, 350; Hall v. Koehler, 347 Mo. 658, 660, 148 S.W.2d 489, 490; and for the history and evolution of the rule see Frank Schmidt Planing Mill Co. v. Mueller, 347 Mo. 466, 147 S.W.2d 670 and 1964 Wash.L.Q. pp. 687-704. Upon the authority of this line of cases jurisdiction of the appeal is properly in this court and the respondents' motion to dismiss or transfer the cause is overruled.

The resolution of the jurisdictional problem has the incidental effect of precisely delimiting the issues or inferentially disposing of any claim of infringement of constitutional rights. The basic documents, trust indentures, plats and conveyances, in the building restriction cases, particularly in St. Louis, as well as the institution of suits to invalidate the restrictions, including the pleadings, the detailed proof and expert testimony, have become a pattern. This case follows the pattern in every respect and it is not necessary therefore to detail the evidence and set forth all the surrounding circumstances or even to note numerous small differences and carefully balance benefits to the plaintiff and detriments to the defendants resulting from enforcement or denial of enforcement of the restrictions. Annotations 54 A.L.R. 812, 813; 4 A.L.R.2d 1111. 'Change of neighborhood in restricted district as affecting enforcement of restrictive covenant.'

Constitutional and collateral or incidental questions aside, the appellant now asserts that the restrictions have become 'inoperative and void by reason of substantial and notorious violations acquiesced in by the defendants.' In this connection it is argued that the restrictions are so indefinite and uncertain as to the area included and the length of their duration as to make them ineffective. And finally, and perhaps this is the crux of her case, the appellant urges that by reason of changed conditions, particularly in the surrounding area, 'the highest and best use of the appellant's property' is the construction of a high-rise apartment and consequently it is urged that in all fairness the restrictions have become unenforceable.

At the outset it may be parenthetically observed that this particular tract of land, fronting on Lindell Boulevard ('the strip' in 1904) and facing Forest Park, is so familiar that its general appearance and character are almost matters of common knowledge. All relevant documents, including the 1908 trust indenture, and all plats of the 'Catlin Tract' are set forth in such precise terms and detailed measurements that the area and its dimensions are indisputable. As to duration the indenture provided that '(t)hirty years after the date of this deed,' December 18, 1908, a meeting 'of the then owners' could be called and 'the restrictions of any part of them' abolished by a vote of the owners of '60% of the total front feet.' Except as to street dedications and some exceptions to be specifically noted, meetings of owners have been held over the years, the last time in April 1962, and in accordance with the terms of the indenture the property owners have noted to retain the restrictions.

As a matter of fact the appellant's subsidiary point as to indefiniteness as to area and duration is not urged in the conventional sense of these terms (Compare Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A.L.R. 452, and Duncan v. Academy of Sisters of Sacred Heart, Mo., 350 S.W.2d 814), the argument relates to what she calls 'exceptions' in the indenture and is employed to bolster the principal argument of violations acquiesced in by the defendants. As indicated, along the north or backside of the Catlin Tract is the Wabash Railroad right-of-way and for part of the length of the tract the Rock Island Highway. At the eastern end of the Catlin Tract the Wabash roadbed makes a sweeping curve to the...