Hall v. Koehler

• Decision Date: 13 March 1941
• Docket Number: 37208
• Citation: 148 S.W.2d 489,347 Mo. 658
• Parties: Howard E. Hall et al. v. Anna Keith Koehler, Alfred J. Stryhn and Claudia Stryhn, Appellants
• Court: Missouri Supreme Court

148 S.W.2d 489

347 Mo. 658

Howard E. Hall et al. v. Anna Keith Koehler, Alfred J. Stryhn and Claudia Stryhn, Appellants

No. 37208

Supreme Court of Missouri

March 13, 1941

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard Judge.

Affirmed.

Maurice H. Winger, George J. Winger, John T. Barker and Frank Brockus for appellants.

(1) The enforcement of restrictions upon the use of land in courts of equity is not a matter of absolute right but rests within the sound discretion of the chancellor as determined in the light of all the facts and circumstances in the case, being governed by the same general rules and principles which control equitable relief in specific performance cases. 14 Am. Jur. 664, sec. 338; Trustees of Columbia College v Thacher, 87 N.Y. 311, 41 Am. Rep. 365; Windemere-Grand Improvement & Protective Assn. v American State Bank, 172 N.W. 29; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545. (2) Equity will not enforce rigid observance of a restriction of property to residence uses when, because of inroads of business into the surroundings since the restrictions were imposed, the predominate character of the neighborhood has become so radically changed that strict enforcement would neither restore the original conditions nor benefit the plaintiffs, but would only serve to injure the defendants and would, therefore, be inequitable. 32 C. J. 212, sec. 328; 54 A. L. R. 813; Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217; Taylor Ave. Imp. Assn. v. Detroit Trust Co., 278 N.W. 75; Elrod v. Phillips, 214 N.C. 472, 199 S.E. 722; Barton v. Moline Properties, 121 Fla. 683, 164 So. 551, 103 A. L. R. 725; Gage v. Schavoir, 124 A. 535. (3) The defendants having expended large sums of money for repairs, improvement and equipment to adapt the property to the use complained of, and the plaintiffs having had knowledge of these expenditures and of the purposes for which made, and having stood by without action while the same were being made, are now estopped to invoke the aid of equity in this case. 4 Pomeroy's Eq. Jurisprudence (4 Ed.), p. 3972, sec. 1702; Carstens v. Woodriver, 176 N.E. 266; Gillingham v. Timmins, 104 S.W.2d 115; Loud v. Pendergast, 92 N.E. 40; McRae v. Lois Grunow Memorial Clinic, 14 P.2d 478. (4) Independent of any waiver or estoppel the plaintiffs are now barred by their laches, and by their acquiescence for a long period of time in the identical business use of the defendants' property which they now seek to restrain, from invoking the aid of equity in this case. 14 Am. Jur. 667, sec. 340; Galliher v. Cadwell, 145 U.S. 368, 12 S.Ct. 873, 36 L.Ed. 738; St. Louis Safe Deposit Bank v. Kennett Estate, 101 Mo.App. 370, 74 S.W. 474; Phillips v. Dunseith, 112 A. 240; Bigham v. Winnick, 286 N.W. 102; Leaver v. Gorman, 67 A. 111.

George K. Brasher for respondents.

(1) Where restrictions are based on contract which is complete and fair and not tainted with fraud and not on general law, the judicial discretion is narrow and injunction will be granted as a matter of right. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529. (2) Changed conditions which will defeat restrictive covenants must be so radical as practically to destroy the essential objects and purposes of the restrictive agreement. Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529; Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398. (3) Whether there was undue delay in asserting plaintiffs' rights so as to constitute laches depends on the circumstances of each particular case. Palfrey v. Killian, 224 Mo.App. 325, 27 S.W.2d 462; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Action to enjoin violation of restrictions as to use for residence only of property in Hinkle Place addition in Kansas City. Injunctive relief was granted and defendants appealed. There was evidence to the effect, and nothing to the contrary, that if the restrictions were removed the value of the property involved would be enhanced in excess of $ 10,000, hence the appeal to the Supreme Court. [Art. 6, Sec. 12, Constitution; Sec. 1914, R. S. 1929, 4 Ann. Stat. 2587.]

The plat of Hinkle Place addition was filed November 12, 1921. The addition consists of 72 lots and extends two blocks north and south and four blocks east and west. Morningside Drive and McGee Street are north and south streets through the addition, and 63rd Street bounds the addition on the south. All the lots except 4 or 5, are developed and improved and all buildings are residences and appurtenances thereto.

Among the restrictions imposed is paragraph one, as follows: "None of the lots in said addition shall be improved, used or occupied for other residence purposes, and no double or duplex houses, hotels, flats or apartment houses, although intended for residence purposes, shall be erected in said addition."

The restrictions were to run for 25 years from September 1, 1921, and an extension of another such period was provided for if desired. Plaintiffs are the owners of some 15 residences in the addition and, for the most part, reside in their respective homes in the addition. Defendant, Koehler, owns lots 44, 45, 46, 56, 57 and part of 58 in the addition, and these lots are the site of the old Hinkle home place, and the large frame dwelling house thereon, fronting south on 63rd Street, is known as the Hinkle house and was there when the addition was laid out. Defendants were tenants of Mrs. Koehler; resided in the Hinkle house and operated therein, under the name of Twin Pine Inn, a kind of an eating place which was licensed as a restaurant.

The defense is estoppel, and that since the plat of Hinkle Place addition was filed, November 12, 1921, business has so developed in the neighborhood as to justify breach of the residence restriction. We shall consider these defenses in the converse.

Defendant Koehler filed separate answer, and as to changed conditions, she alleged:

"That since the execution and filing of said plat the conditions surrounding said property and in the neighborhood thereof have radically changed so that at the time of the filing of this suit, and at the present time, the property surrounding the property owned by this defendant is largely occupied for business purposes, and 63rd Street, upon which the defendant's property fronts, had become a business thoroughfare, extending from Wornall road on the west of said property to the city limits, and highway No. 50 on the east thereof; that said 63rd Street is known and recognized as a business thoroughfare and a heavily travelled trafficway, and that the property on both sides thereof has been zoned by Kansas City for business purposes.

"The property owned by this defendant has a frontage of 165 feet on 63rd Street and is valuable for business purposes and of little or no value for residence purposes. There is no sale for lots fronting on 63rd Street for residence purposes, and it is difficult, if not impossible, for this defendant to lease her property for strictly residential occupancy."

Defendant, Mrs. Koehler, purchased the property in November, 1938; the consideration was $ 20,000, and her deed recited that it was subject to the restrictions. In June, 1939, she leased to the Stryhns, her codefendants, for $ 100 a month, and on July 9, 1939, the Stryhns started operation of the Twin Pine Inn.

Nine of the plaintiffs testified. Their respective investments in the addition, including lot and improvements thereon, ranged from $ 8500 to $ 15,000, and the date of their purchases ranged from shortly after the addition was laid out in 1921 to 1939. Nearly all testified that they would not have purchased property in the addition except for the residence restriction. Typical of all the witnesses, who were interrogated on the subject of property development in the addition, is the evidence of Dr. Richard L. Sutton, Jr., who purchased in 1935. He testified:

"The character of the development on either side of my house in the block in which the house is located is solidly residential. They are not fine, high type residences or low type residences; they are nice homes. The one to the east of us is somewhat nicer than our home, and those to the west are well kept up and seem to be well thought of by their owners . . . The house immediately to the west of me is a residence -- a fairly high type residence, somewhat similar to my own; it is a two story house, approximately the same house. . . . That neighborhood is well maintained as a high type or high class, strictly residential neighborhood."

The evidence on the part of defendants as to business encroachment was about to the same effect as alleged by defendant, Koehler.

The general equitable principles as to restrictions are well stated in 14 Am. Jur., p. 664, sec. 388, as follows:

"Whether injunctive relief will be granted to restrain the violation of building restrictions is a matter within the sound legal discretion of the chancellor, to be determined in the light of all the facts and circumstances. . . . The equitable enforcement of a restriction can be invoked only for the purpose of protecting the benefit which it was the object of the covenant to afford. If the restrictive covenant has ceased to have any beneficial value to the complainant's property, it can form no ground for equitable relief."

Rombauer et al. v. Compton Heights Christian Church et al., 328 Mo. 1, 40 S.W.2d 545, was to enjoin violation of restrictive covenants. In that case it was said [40 S.W.2d l. c. 553]:

"No hard and fast rule can be laid down as to when...