Eyerman v. Mercantile Trust Co., N.A., 35699

CourtCourt of Appeal of Missouri (US)
Citation524 S.W.2d 210
Docket NumberNo. 35699,35699
PartiesDr. Edward L. EYERMAN et al., Plaintiffs-Appellants, v. MERCANTILE TRUST CO., N.A., et al., Defendants-Respondents. . Louis District, Division One
Decision Date22 April 1975

Page 210

524 S.W.2d 210
Dr. Edward L. EYERMAN et al., Plaintiffs-Appellants,
MERCANTILE TRUST CO., N.A., et al., Defendants-Respondents.
No. 35699.
Missouri Court of Appeals, St. Louis District, Division One.
April 22, 1975.
Motion for Rehearing or to Transfer to Supreme Court Denied
June 12, 1975.
Application to Transfer Denied July 14, 1975.

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Armstrong, Teasdale, Kramer & Vaughan, Edwin S. Fryer, St. Louis, for plaintiffs-appellants.

Harry W. Kroeger, Lashly, Caruthers, Rava, Hyndman & Rutherford, Michael C. Walther, Thompson, Mitchell, Douglas, Neill, Guerri & Elbert, Fred E. Arnold, St. Louis, for defendants-respondents.


Plaintiffs appeal from denial of their petition seeking injunction to prevent demolition of a house at #4 Kingsbury Place in the City of St. Louis. The action is brought by individual neighboring property owners and certain trustees for the Kingsbury Place Subdivision. We reverse.

Louise Woodruff Johnston, owner of the property in question, died January 14, 1973, and by her will directed the executor '. . . to cause our home at 4 Kingsbury Place . . . to be razed and to sell the land upon which it is located . . . and to transfer the proceeds of the sale . . . to the residue of my estate.' Plaintiffs assert that razing the home will adversely affect their property rights, violate the terms of the subdivision trust indenture for Kingsbury Place, produce an actionable private nuisance and is contrary to public policy.

The area involved is a 'private place' established in 1902 by trust indenture which provides that Kingsbury Place and Kingsbury Terrace will be so maintained, improved, protected and managed as to be desirable for private residences. The trustees are empowered to protect and preserve 'Kingsbury Place' from encroachment, trespass, nuisance or injury, and it is 'the

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intention of these presents, forming a general scheme of improving and maintaining said property as desirable residence property of the highest class.' The covenants run with the land and the indenture empowers lot owners or the trustees to bring suit to enforce them.

Except for one vacant lot, the subdivision is occupied by handsome, spacious two and three-story homes, and all must be used exclusively as private residences. The indenture generally regulates location, costs and similar features for any structures in the subdivision, and limits construction of subsidiary structures except those that may beautify the property, for example, private stables, flower houses, conservatories, play houses or buildings of similar character.

On trial the temporary restraining order was dissolved and all issues found against the plaintiffs.

Defendants question plaintiffs' standing to bring this suit, arguing that plaintiffs are not parties in interest who may invoke the rights of beneficiaries of the will against a trustee to enforce a trust or enjoin its breach, citing Restatement, Second, Trusts § 200. This is not such a suit. Plaintiffs' action is not to invoke the rights of beneficiaries of the will for enforcement of a trust or to enjoin its breach; instead, they seek protection of competing interests shared by themselves and the general community against a capricious condition of a will directing the defendant-executor to destroy estate property. If appellants are successful, important rights personal to plaintiffs and the public will be vindicated and it is only incidental that the effect on decedent's estate will increase funds available for distribution to the beneficiaries. Here the gift is not a devise of particular land to specific beneficiaries, but instead testatrix's house is to be razed and the lot converted to cash. From this we find no intent to preserve the land for a settled purpose or the use of any person or group; instead, it becomes a gift of money, indefinite as to amount, for the residual estate.

The issues, simply stated, involve: (1) Private nuisance; (2) enforcement of restrictive covenants and (3) public policy.

Plaintiffs clearly have standing to raise the issues of nuisance abatement and enforcement of the restrictive covenants in the subdivision indenture. Persons threatened with wrongful interference of property rights may seek injunction against a threatened nuisance, Lee v. Rolla Speedway, Inc., 494 S.W.2d 349 (Mo.1973), and the trust indenture regulating Kingsbury Place empowers the trustees or any property owner to bring suit to enforce the covenants. Under Rule 52.01 1 trustees of an express trust may bring a civil action in their own names in such representative capacity. As to plaintiffs' standing to raise the public policy issue, we must determine whether plaintiffs alleged a legally protectible interest. Allen v. Coffel, 488 S.W.2d 671, 674 (Mo.App.1972); Smith v. Cowen, 350 S.W.2d 96 (Mo.App.1961); Rule 52.01. Though defendants cite no authority on the question of whether private individuals have a legally protectible interest sufficient to give them standing to raise public policy issues, the question has been examined by federal courts in recent years. In United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the Supreme Court held that members of an environmental organization had standing to challenge a railroad surcharge on shipping rates of recyclable materials on allegation that the higher rates would discourage the use of recyclable waste materials and promote increased use of new raw materials, thus adversely affecting the environment. Plaintiffs pleaded, more specifically, the environment surrounding their legal residences would be affected, causing them direct, personal injury. The Supreme Court recognized the test for standing as whether plaintiffs alleged that they had been or will

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in fact be perceptibly harmed by the challenged action, not merely that they can imagine circumstances in which they might be harmed or that the actions are generally undesirable. This concept was restated in Coalition for the Environment v. Volpe, 504 F.2d 156, 165 (8th Cir. 1974), nothing a dual test of whether the challenged action will cause plaintiffs injury in fact, and whether the injury is within the 'zone of interests' created by statutes which plaintiffs contended were being violated, suggesting the need for a causal relationship between the action challenged and the injury complained of.

In Volpe the 8th circuit granted standing to individuals living near a property development who alleged that they would be injured by increased traffic and loss of open space. According to the court, such allegations constituted 'statements of specific injury experienced by ascertainable individuals who reside near or pass through the affected area.' Coalition for the Environment v. Volpe, supra at 167. These considerations are applicable even when plaintiffs raise aesthetic or environmental interests which they wish to protect, or that these interests may be common to the entire community, so long as the named plaintiffs are threatened with specific, personal injury. 'Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection . . .' Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). See United States v. S.C.R.A.P., supra, 412 U.S. at 687, 93 S.Ct. 2405.

Whether #4 Kingsbury Place should be razed is an issue of public policy involving individual property rights and the community at large. The plaintiffs have pleaded and proved facts sufficient to show a personal, legally protectible interest.

Demolition of the dwelling will result in an unwarranted loss to this estate, the plaintiffs and the public. The uncontradicted testimony was that the current value of the house and land is $40,000.00; yet the estate could expect no more than $5,000.00 for the empty lot, less the cost of demolition at $4,350.00, making a grand loss of $39,350.33 if the unexplained and capricious direction to the executor is effected. Only $650.00 of the $40,000.00 asset would remain.

Kingsbury Place is an area of high architectural significance, representing excellence in urban space utilization. Razing the home will depreciate adjoining property values by an estimated $10,000.00 and effect corresponding losses for other neighborhood homes. The cost of constructing a house of comparable size and architectural exquisiteness would approach $200,000.00.

The importance of this house to its neighborhood and the community is reflected in the action of the St. Louis Commission on Landmarks and Urban Design designating Kingsbury Place as a landmark of the City of St. Louis. This designation, under consideration prior to the institution of this suit, points up the aesthetic and historical qualities of the area and assists in stabilizing Central West End St. Louis. It was testified by the Landmarks Commission chairman that the private place concept, once unique to St. Louis, fosters higher home maintenance standards and is among the most effective methods for stabilizing otherwise deteriorating neighborhoods. The executive director of Heritage St. Louis, an organization operating to preserve the architecture of the city, testified to the importance of preserving Kingsbury Place intact: 2

'The reasons (sic) for making Kingsbury Place a landmark is that it is a definite

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piece of urban design and architecture. It starts out with monumental gates on Union. There is a long corridor of space, furnished with a parkway in the center, with houses on either side of the street, . . . The existence of this piece of architecture depends on the continuity of the (sic) both sides. Breaks in this continuity would be as holes in this wall, and would detract from the urban design qualities of...

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