Fete v. Foerstel

• Decision Date: 15 July 1911
• Citation: 159 Mo. App. 75,139 S.W. 820
• Parties: FETE et al. v. FOERSTEL et al.
• Court: Missouri Court of Appeals

139 S.W. 820

159 Mo. A. 75

FETE et al. v. FOERSTEL et al.

St. Louis Court of Appeals. Missouri.

July 15, 1911.

Rehearing denied September 30, 1911.

1. DEEDS (§ 170) — RESTRICTIONS — USE OF PROPERTY.

Where a residential addition was divided by railroad tracks, the fact that the portion west of the tracks, though subdivided on the plat, was not laid out in streets or lots, but was sold as acre property, did not affect the validity of restrictive covenants imposed upon the land in the east portion; it appearing that such part was actually subdivided and used for residence purposes.

2. DEEDS (§§ 171, 172) — RESTRICTIONS — USE OF PROPERTY — BUILDINGS — VALUE.

Where owners of a residential addition to a city placed in the deeds of all the purchasers covenants which fixed a building line and prohibited the sale of intoxicants, the fact that the improvements put in the addition were not of great value did not impair the efficacy of the covenants; the spirit of the restrictions being to establish a pleasant residential district.

3. DEEDS (§ 173) — RESTRICTIONS — USE OF PROPERTY — PERSONS BENEFITED.

Where owners of a residential addition to a city placed in the deeds of all the purchasers covenants which fixed a building line and prohibited the sale of intoxicants upon the purchased property, the covenants inured to the benefit of all of the owners.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Henry Fete and others against Henry Foerstel and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Buder & Buder, for appellants. H. E. Sprague and Franklin Miller, for respondents.

REYNOLDS, P. J.

This is a suit to enjoin defendants, Henry Foerstel and wife and one Moore, from proceeding with the erection of a building which the Foerstels have commenced, Moore being the contractor, on Arthur avenue, in Harlem Place, being on lot 18 of city block 4,771, in the city of St. Louis. As the excavation has been made and the foundation walls laid, the north wall of the foundation is ten feet south of the south line of Arthur avenue, on which street the lot fronts. This lot is in what is called Harlem Place, a subdivision of the city, originally laid out by the Western Mutual Land & Improvement Company. The plat of this subdivision filed shows it to be divided into lots and blocks with streets and alleys. It is in form a parallelogram, its length from east to west is about 2,892 feet; its width from north to south about 962 feet. It appears that the tracks of the St. Louis & San Francisco Railroad run diagonally across the west end of the tract or subdivision, so that a tract 962 feet from north to south, extends about 488 feet from east to west on the south side and about 854 feet on the north side lies west of the railroad, and the main body of it, a tract 2,404 feet on the south line and 2,038 feet on the north line, 962 feet wide, lies east of the railroad. While the portion west of the railroad track was subdivided on the plat, it appears by the testimony that in point of fact there were no streets dedicated nor lots subdivided in this west end and that sometime after the filing of the plat, the original owner, the Western Mutual Land & Improvement Company, by mesne conveyances, had sold off this portion west of the railroad as acre property, never having sold any of it as lots and not selling it with any restrictions as to building line or otherwise. That is, the part of the subdivision west of the railroad track was abandoned as lots and blocks and residence property. That portion of it east of the railroad track, and which comprises about three-fourths of the original subdivision, and in which portion the lots of plaintiffs and of defendants are situated, was not only subdivided into lots with streets and alleys, but in all the conveyances which were made by the Western Mutual Land & Improvement Company of lots in this eastern part of the subdivision, the following conditions and restrictions were contained, to-wit:

"It being expressly understood and agreed by and between the said parties hereto, that as a part of the consideration for the property therein described, this conveyance is made subject to the following restrictions and reservations, viz.: That no building of any kind shall be erected thereon by said grantee within twenty (20) feet from the street on which it fronts; that said grantee shall not erect or suffer to be erected thereon any building or buildings to be used as wine, beer or liquor saloon, or for the retailing of any kind of intoxicating drinks, nor shall said grantee suffer or permit any nuisance of any kind upon said premises; and the said property hereby conveyed shall not be sold or otherwise disposed of by the said grantee, under any other conditions than those hereinabove contained conformably to resolutions adopted by the Board of Directors of said Western Mutual Land & Improvement Company.

"To have and to hold, the premises aforesaid with all and singular the rights, privileges, appurtenances and immunities, thereto belonging, or in anywise appertaining, subject to the above restrictions, unto the said party of the second part, and unto his heirs and assigns forever."

These plaintiffs here and their grantors and Mr. and Mrs. Foerstel, who were seized of an estate in entirety in the lot they purchased, as well as all other owners of lots in this part of Harlem Place east of the railroad tracks, hold under deeds to their several grantors containing the above conditions. In the deed to the Foerstels from one Jungmann, who purchased from the Western Mutual Land & Improvement Company, under a deed with the foregoing conditions, there is this covenant: "This conveyance is made subject, however, to the conditions and restrictions, and easement over the rear six feet for use as an alley, as set out in deed recorded in book 1223, page 303." This deed recorded in book 1223 above referred to, is the deed from the Western Mutual Land & Improvement Company to Jungmann, and it contains the covenants hereinbefore referred to as to restrictions, etc.

The plaintiffs, alleging that the Foerstels, as owners, and Moore, as contractor with them, were about to violate this covenant as to the twenty-foot building line, aver that each of the several plaintiffs claim under deeds from the Western Mutual Land & Improvement Company containing the restriction above set out and that at the time of the laying out of Harlem Place the Western Mutual Land & Improvement Company was the owner of all the land contained in it, aver that the tract was so situate and the lots in it adjoined each other so as to form a compact rectangular tract or parcel of land, suitable and conveniently located for residence purposes, and that with the general plan and design of forming from said tract or parcel a high-class residence district of said city, and of selling and disposing of lots therein for such purposes, the Western Mutual Land & Improvement Company had platted it and in its deeds had embodied the conditions and restrictions above set out, and that these restrictions and conditions were prescribed and imposed upon each of the lots as an easement or equity for the benefit of each other and for the benefit of the remaining lots in the subdivision subject to similar uniform conditions and restrictions and that all the parties plaintiff and defendants Foerstel have derived their titles thereto from the common source named, subject to and with notice of and bound by the aforesaid building line condition and restriction, and that plaintiffs and their grantors have expended large sums in the improvement of their respective lots by the erection thereon of substantial and expensive residences and other improvements, and that many other owners and holders of lots in the subdivision and their grantors have made like improvements and that the subdivision is now, as it was planned and intended to be, a high-class residence section or district, and that the remaining vacant lots therein are being similarly improved from time to time by the owners thereof, and that in the erection of the residences and of the use of the lots owned by plaintiffs and...