Evans v. Booth
| Decision Date | 27 May 1946 |
| Docket Number | 20695 |
| Citation | 197 S.W.2d 718 |
| Parties | EVANS et al. v. BOOTH et al |
| Court | Kansas Court of Appeals |
Clark Boggs, Peterson & Becker, Howard B. Lang, Jr., and Wm. L Nelson, Jr., all of Columbia, for appellants.
George C. Miller and William H. Sapp, both of Columbia, for respondents.
BLAND
This is a proceeding in equity, seeking to enjoin the defendants from using their residence as an apartment house, in violation of the Zoning Ordinance of the City of Columbia. At the close of the evidence the court found the issues in favor of the defendants, and dismissed the plaintiffs' bill. Plaintiffs have appealed.
The facts show that the district in which defendants' house is located is zoned for residences to be occupied by not more than two families. Plaintiffs own property in the vicinity of the house in question.
In March 1940 the property (then a vacant lot) was owned by one Trowbridge, who requested the Planning and Zoning Committee of the City, under the Zoning Ordinance, to rezone the property to permit him to build an apartment house. The request was denied. Trowbridge made subsequent requests for the rezoning of the property for apartments. These were all opposed by neighboring property owners and refused by the City Planning and Zoning Committee.
In 1940 Trowbridge applied to the City Engineer for a building permit to construct a duplex on the property in question. This application was accompanied by a blue print which showed more than two dwelling units in the proposed building. On April 6 1940, the Acting Engineer wrote Trowbridge that he refused to issue a permit because the request was for the construction of an apartment house, which was prohibited in the district in question. Subsequently, a building permit was issued to Trowbridge to construct a brick and tile two story duplex, which is also known as a two family dwelling house. The house, facing south, was completed during that year and was of the conventional colonial type. On June 17th, the City Engineer wrote Trowbridge that the latter was planning to construct an apartment in the basement of the building, which would make the house for three families.
Later in 1940 the Acting City Engineer and the City Attorney inspected the building being constructed by Trowbridge and found that he was not following the plans for the construction of a two family residence. The City Engineer required Trowbridge to close the rear doors and to dismantle the kitchens, which were at the rear of the house, on the first and second floors in connection with the west tiers of rooms (the tiers run from the front to the back of the house) leaving the kitchens in connection with the east tiers of rooms on both floors. He also required the rear stairway, the kitchen plumbing and wiring removed from the west side (both floors) and the doors to the rear stairway sealed with brick and tile.
After Trowbridge had complied with the order of the City Officials in reference to dismantling the kitchens, etc., the building was left, in some particulars, different than that contemplated by the floor plan of the house that was filed with the Engineer, in that, the plan showed several openings and passageways between the east and west sections or tiers of rooms on both floors, but in constructing the building Trowbridge placed doors therein.
After the building was altered Trowbridge moved into the first floor of the house and rented the second floor and operated the building as a two family residence. The Building Inspector and the City Attorney inspected the house on at least three occasions, after the alterations had been made, and found, on each occasion, that Trowbridge and the defendants, who purchased the house from Trowbridge in July 1944, were lawfully using it as a two family dwelling. The Building Inspector and the City Attorney also inspected the basement when they inspected the house, and approved of the condition of the former and the use being made thereof.
Section 1156 of the Zoning Ordinance defines:
'Apartment. A suit of rooms or a room in an apartment house arranged, intended, designed for, or used as the place of residence of a single family group of individuals living together as a single housekeeping unit.
'Apartment House. A building arranged, intended, designed for, or occupied by more than two families.
'Boarding House or Lodging House. A building other than a hotel, occupied as a single housekeeping unit, where lodging or meals are provided for five or more persons for compensation pursuant to previous arrangements, but not for the public or transients. 'Dwelling. A building arranged, intended, designed for, or occupied by not more than two families.
At the time of the filing of this suit the lower east tier of rooms was occupied by the defendants as a residence. The lower west tier is occupied by Mrs. Hetzler. The east second tier of rooms is occupied by Mr. Hill and his family. The west second tier is occupied by Misses Allison and Press. (Miss Allison moved away before the trial.) Messrs. Greenwald and Rolfes live in the basement. Mr. Kolivosky had also lived in the basement, but had moved at the time suit was filed. All of the tenants rented from the defendants. Misses Press and Allison (school teachers) and Mrs. Hetzler were free to enter that part of the building occupied by the defendants. The Hill rooms are occupied by Mr. and Mrs. Hill and son. The tier of rooms on the east side of the building on both floors contain five rooms and bath. One room in each of these tiers is fully equipped as a kitchen. Each of the West tiers of rooms contain a living-room, two bed-rooms and bath. They do not contain a kitchen or kitchen equipment, though both contain refrigerators owned by the defendants. The doors on each floor between the east and west tiers of rooms are opposite each other so one can see across the hall from one tier of rooms into the other when the doors are open. There is no connection between the upper and the lower rooms except a stairway from the entrance hall. There is a small hall between the upper west and east group of rooms at the front. This hall provides a passageway for the occupants of both tiers of rooms on the second floor to the deck over the front porch and the stairway to the attic. It is closed from each tier of rooms on each side by a door. The building has a front entrance into a first-floor hall and a stairway to a second-floor hall. The entrance to each tier of rooms is through a door from one of the halls. There are four door buzzers on the front door each connected with one of said tiers of rooms. The names of the occupants of each of the tiers of rooms are on the buzzers. The buzzers are numbered from one to four. Mrs. Hetzler's buzzer is connected with chimes in her rooms. Each of said tiers of rooms has a separate telephone paid for by the occupants. Mrs. Hetzler pays her own water and light bill. The water and heat is furnished the other renters and heat is furnished Mrs. Hetzler by the defendants.
The basement contains the heating equipment. It was at no time rented to a family group. Student roomers, individually, had occupied parts of the basement at times but never had prepared or eaten their meals therein. There are no cooking facilities in the basement. It has four rooms and is equipped with a bathroom and a shower. Two rooms are occupied by students. There is also a room in the southeast corner of the basement called a 'plunder room' and a vacant room in the southwest corner. In addition there is a 'racket room'. The rooms are all finished and plastered. The roomers in the basement are compelled to 'go through the basement' to get to the bathroom. The furnace in the basement almost blocks the passageway through the outside door leading thereto.
Mrs. Hetzler, Misses Allison and Press, and Henry Rolfes, all testified to the effect that their rooms were rented to them on condition that they were not to cook therein; that they were to occupy their rooms merely as roomers.
Plaintiffs introduced a number of witnesses to show that an apartment house in this district would decrease the value of the surrounding property. On cross examination they testified that, in their opinion, an apartment house consists of living quarters for a family equipped with kitchen and cooking facilities and the usual conveniences that are found in the average home. Some of these witnesses were members of the Planning and Zoning Board of the City. This testimony on cross examination was objected to by the defendants on the ground that what constituted an apartment or an apartment house was a question of law for the court to decide and not a question of fact.
The former City Attorney, the former Building Inspector, and the President of the Realtors Association of Columbia, and others, were called as witnesses for the defendants. They testified that the house was a two family dwelling or a duplex and not an apartment house; that an apartment in an apartment house, according to a common understanding among real estate men in Columbia, consists of a complete living unit with kitchen, bath and necessary facilities for ordinary housekeeping.
Defendants testified that they never permitted anyone to occupy any part of the house, other than as a roomer, except themselves and the Hill family; that they never had more than four or five roomers in the house; that such roomers, as Mrs. Hetzler were restricted to the privileges of ordinary individual roomers; that defendants retained the control of, and dominion over the parts of the house...
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