Gibbs v. Cass

• Decision Date: 14 June 1968
• Docket Number: No. 32893,32893
• Citation: Gibbs v. Cass, 431 S.W.2d 662 (Mo. App. 1968)
• Parties: Thomas A. GIBBS, Mildred F. Gibbs, His Wife, John W. Schaper, Leona T. Schaper, His Wife, John C. Bodine and Louise E. Bodine, His Wife, Plaintiffs-Respondents, v. Robert A. CASS and Helen Cass, His Wife, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 662

431 S.W.2d 662

Thomas A. GIBBS, Mildred F. Gibbs, His Wife, John W Schaper, Leona T. Schaper, His Wife, John C Bodine and Louise E. Bodine, His WifePlaintiffs-Respondents, v.Robert A. CASS and Helen Cass, His Wife, Defendants-Appellants.

No. 32893.

St. Louis Court of Appeals, Missouri.

June 14, 1968.

Motion for Rehearing or for Transfer to Supreme Court Denied

Sept. 4, 1968.

Ziercher, Tzinberg, Human & Michenfelder, Robert C. Jones, Clayton, for defendants-appellants.

Green, Hennings, Henry & Arnolds, St. Louis, for plaintiffs-respondents.

RUDDY, Judge.

This is a suit in equity to enjoin the alleged violation of a restrictive covenant prohibiting the resubdivision of a lot owned by defendants.Defendants in their answer deny the applicability of the restrictive covenant to their proposed action and plead affirmative defenses of waiver and abandonment of the restrictive covenant and change in the character and condition, since the adoption of the restrictive covenant, of the neighborhood within which the properties owned by plaintiffs and defendants is situated.Injunctive relief was granted plaintiffs and defendants appealed.

Plaintiffs brought this action as property owners in the Heather Acres Subdivision and additionally, Thomas A. Gibbs, John W. Schaper and John C. Bodine brought it as Trustees of said subdivision.Most of the material facts have been agreed to by the parties and are contained in a stipulation signed by the attorneys for the respective parties and filed in the trial court.Other facts were supplied by the witnesses for the respective parties.We observe no significant disagreement between the parties as to the pertinent facts.

The Glen Oaks Corporation was the owner of a large tract of land and at some time prior to August 11, 1950 it caused said tract of land to be subdivided into lots.On the aforesaid date said Glen Oaks Corporation caused a plat, showing said property as it was subdivided, to be recorded in the office of the Recorder of Deeds for St. Louis County, Missouri.A reproduction of said plat as filed (except as noted hereinafter) is inserted here in reduced form.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The boundaries of said tract are shown by the outlined borders and the number of lots platted in the original subdivision was 33.The number of each lot as originally platted is shown on the plat in boldfaced numerals.The plat also shows the amount of acreage contained in each lot and the lot in controversy sought to be resubdivided is No. 23.The shaded or lined portion of the plat shows the original lots that were resubdivided, prior to the effort on the part of the defendants to resubdivide their lot No. 23.Also included in the shaded or lined portion is lot 23.Shown also in the lined portion are the new numbers (in the white spaces in light-faced numerals) assigned to the newly created lots, together with their boundaries, after the resubdivision of original lots 4, 32 and 33.Ten of the lots as originally platted contained one acre each.Eleven of the lots contained between one and one and one-half acres each.Four of the lots contained between one and one-half and two acres each.One lot (No. 29) contained 2.35 acres.Six of the lots (Nos. 22, 23, 30, 31, 32 and 33) as originally platted contained between three and four acres each and one lot, namely, lot No. 4 contained approximately sixteen acres.

The subdivision was to be known as Heather Acres and was to be a single family residential area and has been developed as such.On the same day the subdivision plat was recorded there was also recorded a Declaration of Restrictions for Heather Acres Subdivision and every lot and parcel in the subdivision that was sold by the developer subsequent to the recordation of the Declaration of Restrictions was sold subject to the restrictions contained in said declaration.Among the restrictions imposed on the lots was the following: 'No lot may be resubdivided and no building shall be erected on less than one acre and the minimum width of each lot at the building line shall be at least 100 feet.'All of the lots were sold by the developer intact as platted in the original subdivision plan except those mentioned hereinafter.These lots in the course of their sales were resubdivided as hereinafter shown.In August of 1950 the west 60 feet of lot 32 and the east 60 feet of lot 33 were sold to one purchaser.This had the effect of resubdividing lots 32 and 33.On September 21, 1950 the west 120 feet of lot 33 was sold and on December 11, 1950 the east 120 feet of lot 32 was sold.Each of these resubdivided portions of lots 32 and 33 were sold to different purchasers.In the early part of 1953 4.534 acres of lot 4, immediately north of lots 32 and 33 as platted, were sold by the developer to another development as a portion of another subdivision adjoining the Heather Acres Subdivision.These 4.534 acres of lot 4 became a part of the Signal Hill Subdivision.In 1960 C. A. Borchelt, owner of lot 24, purchased 3.901 acres of lot 4 and in 1965he purchased two acres from the developer of lot 4.These two purchases formed the triangular shape parcel fronting on Lemp Road on the plat and on the rear lot line of lots 24, 25, 26, 27 and part of 28.In 1954 the developer transferred the remaining portion of lot 4 to another subdivision adjoining the Heather Acres Subdivision.This other subdivision was known as Charmwood.It appears from the plat that a part of the Charmwood Subdivision purchased from the developer of Heather Acres Subdivision has been subdivided into lots.There were four separate sales of portions of lot 4, each requiring a resubdivision of said lot.December 14, 1950 lot 22 was sold by the developer and in 1962 the record owner of that lot sold one-half of the lot which had the effect of resubdividing lot 22.It is the purpose of the defendants to resubdivide lot 23, which as originally platted contained 3.13 acres.In the resubdivision as planned by defendants one lot will be 1.05 acres and two lots will be 1.04 acres each.Defendants' present home will be on the triangular shaped lot shown on the plat.It is their plan to build a new home on one of the lots and to sell the third lot and their present home.The proposed resubdivision of lot 23 by the defendants was submitted to the Planning Commission of the City of Kirkwood and received its approval.All of the Heather Acres Subdivision is zoned as one acre single family dwelling units and each of the subdivisions adjoining it are all zoned residential.

Plaintiffs are the owners of the following lots and acreage: Gibbs, lot 6, 1 acre; Schaper, lot 7, 1 acre and Bodine, part of lot 33, 2 acres .Two of plaintiffs' witnesses are owners of lots 7 and 26, each lot containing one acre and the other witness owns lot 3, containing 1.05 acres.All of the plaintiffs and their witnesses were aware of the restrictions at the time each purchased their respective lot.Plaintiffs and their witnesses at the time of the purchases of their respective lots did not have actual knowledge of the resubdivision of lots 4, 32 and 33; however, plaintiffs and all but one of their witnesses had actual knowledge of the resubdivision of lot 22.One of plaintiffs' witnesses testified that the Killebrew house had been built on resubdivided lot 22 before he purchased his home.All of the plaintiffs and plaintiffs' witnesses were aware that Mr. Borchelt, owner of lot 24, had purchased a part of lot 4; however, none of the plaintiffs or their witnesses who knew that lot 22 was going to be resubdivided made any attempt to prevent the resubdivision of lot 22.In fact, the record shows that no one, whether a party to this suit or a witness or a former lot owner took any action to prevent the resubdivision of lots 4, 22, 32 and 33.The first action taken by any present or former lot owners to prevent a resubdivision of lots was that taken in this action by the plaintiffs who brought this action in their behalf and in behalf of a number of lot owners who had attended a meeting of the Heather Acres Association and had objected to the resubdivision of defendants' lot.However, some of the lot owners, who were witnesses for defendants, favored a resubdivision of defendants' lot 23.

In an effort to justify the resubdivision of lot 4 plaintiffs and their witnesses testified that the topography of this lot was very poor and that a deep valley with a stream running through it, with heavy brush and woods, traverses the lot.They testified that in the summer time the stream is practically dry and it forms a small stream during the wet weather.The course of the stream and valley is depicted on the plat by a thin irregular line that begins in the upper portion of the triangular lots described as purchased by Borchelt; the stream and valley being designated at its beginning with the letter 'B' and winding its way through Borchelt's property leaving it at the northwest corner of lot 26 and then continuing through lots 27, 28, 29, 30, 31 and 32.The west end of the stream and valley is indicated on the plat as 'A'.Plaintiffs and these witnesses admitted that homes were built in the Charmwood Subdivision on the portion that previously was part of lot 4 and that these homes could be seen from their lots when there were no leaves on the trees in the winter time but could not be seen in the summer time because of the foliage.

The principal reasons given by plaintiffs and their witnesses for objecting to this proposed resubdivision by defendants of lot 23 were: that the resubdivision would deteriorate the value of the surrounding property; that, as one witness said, he purchased because of the spaciousness of the subdivision and did not think there would be a house within 20 feet of his own house; and, that in the resubdivision, defendants' house would be on a 'triangular-pie shaped lot,' which witness thought was...