Hall v. Wesster

• Decision Date: 08 April 1879
• Citation: 7 Mo.App. 56
• Parties: WILLIAM A. HALL, Respondent, v. EBERT WESSTER, Appellant.
• Court: Missouri Court of Appeals

7 Mo.App. 56

WILLIAM A. HALL, Respondent,

v.EBERT WESSTER, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 8, 1879.

Where all the purchasers of an estate are bound by restrictive covenants not to use their property for certain purposes, an injunction will be granted to restrain a breach of the covenant, without regard to the question of the character or degree of annoyance caused by the breach.

APPEAL from St. Louis Circuit Court.

Affirmed.

MCGAFFEY & STEBER and H. B. WILSON, for appellant: A prohibition against keeping a milk-dairy, being in restraint of trade, will be strictly construed.-- Harrison v. Brooks, 20 Ga. 537; Trustees, etc. v. Lynch, 39 N. Y. 383. The general rule is that an injunction will not be granted where no injury is shown, and courts of equity will not, by injunction, enforce a naked legal right.-- Bosby v. McKim, 7 Har. & J. 469; Railroad Co. v. Guyon, 6 Bush, 486; Railroad Co. v. Baker, 27 N. J. Eq. 166. The question to be determined is one of comparative injury, and the court will be governed by considerations of the relative inconvenience likely to result to the parties from granting or refusing relief.--High on Inj., sects. 717, 718; Higbee v. Railroad Co., 20 N. J. Eq. 435; Railroad Co. v. Prudden, 20 N. J. Eq. 531. Where a covenant is indefinite and uncertain in its provisions, no injunction will be allowed.-- Morse v. Mill Co., 42 Me. 119; Sparhawk v. Railroad Co. 54 Pa. St. 401; Clark v. Insurance Co., 64 N. Y. 33. This was not a proper case for an injunction.-- Olmstead v. Loomis, 6 Whart. 152; Willard's Eq. Jur. 342, 408. Where the plaintiff has slept upon his rights, and allowed money to be spent in the business complained of, an injunction will not be granted.-- Water Lot Co. v. Bucks, 5 Ga. 315; Whitney v. Railroad Co., 11 Gray, 367; Win's Appeal, 74 Pa. St. 230.

E. P. JOHNSON, for respondent: The violation of an express stipulation in such cases is sufficient to authorize an injunction.--Kerr on Inj. 533, 534, sects. 59, 60; High on Inj. 417, sect. 714; Id. 420, sect. 717. And Id. 421, sect. 719, negatives the idea that the act need amount to a nuisance either in law or equity, public or private. And injunction will lie, even where there is a right of re-entry in the person asking for it.--Id. 418, sect. 715; Id. 422, sect. 721. The following authorities sustain the position of appellant: Wood's Law of Nuis. 826, sect. 755; Kerr. on Inj., side-p. 530, sect. 56; High on Inj. 426, sect. 727; Steward v. Winter, 4 Sandf. Ch. 587; Seymour v. McDonald, 4 Sandf. Ch. 502; Parker v. White, 32 L. J. 520; Clark v. Martin, 49 Pa. St. 289; Hills v. Miller, 3 Paige Ch. 254; Trustees, etc. v. Cowen, 4 Paige Ch. 510; Barrow v. Richards, 8 Paige Ch. 351; Parker v. Nightingale, 6 Allen 341; Whitney v. Union R. Co., 11 Gray, 359; Easton v. Railroad Co., 14 Ohio St. 54; German v. Chapman, L. R. 7 Ch. Div. 271; Luker v. Dennis, L. R. 7 Ch. Div. 227; Richards v. Revitt, L. R. 7 Ch. Div. 224; Rutherford v. Taylor, 38 Mo. 315; Price v. Thompson, 48 Mo. 361.

BAKEWELL, J., delivered the opinion of the court.

This was an application for an injunction to restrain the defendant from keeping a milk-dairy on certain premises described. The plaintiff moved for judgment upon the petition and answer, and the court thereupon granted the restraining order as asked, and perpetually enjoined the defendant from keeping a milk-dairy on the premises.

The question presented is, whether, on the admitted facts of the case, plaintiff was entitled to the relief prayed. These facts are that in June, 1869, the Laclede Association laid off into lots and blocks eighty acres of land in the county of St. Louis, and offered the lots for public sale. The lots were chiefly valuable for private residences; and to enhance their value for this purpose, it was proclaimed at the sale that the same would be made in consideration of restrictions to be contained in the deed for each lot sold. These restrictions were, that neither the purchaser nor any one claiming under him should erect or keep or permit on the premises conveyed to him any slaughter-house, stock-yard, milk-dairy, glue, soap, candle, or white-lead factory, brewery, or disorderly house, or any other erection or establishment which might be a nuisance, on pain of forfeiture. At this sale the plaintiff bought a lot for the sum of $200, and received a deed containing the above condition, and built a house on the lot, in which he resides. The defendant, at the same sale, purchased sixteen contiguous lots, and received a deed with the same condition. These lots are situated on low ground on the line of the railroad track, and distant a quarter of a mile from the lot of plaintiff. At the time of the purchase, large buildings, unfitted for residence purposes, were erected on these lots, which are not, and never can be, desirable for residence purposes. The defendant paid $7,061.50 for these lots and improvements, and has since expended $2,000 more in improvements upon them. He has invested his entire means there, and keeps upon the premises a cow-stable in which are from twenty to thirty cows, whose milk he sells in St. Louis, and upon this business he wholly depends for the support of himself and family. The lots are surrounded by a tight board fence fifteen feet high; only the to of the stable can be seen from the outside; the premises have always been kept in a clean and wholesome condition, and free from every thing which can cause annoyance to the neighbors. There is nothing apparent from which one outside could know that a cow-stable is there. No road or street leads to the plaintiff's residence from the premises of the defendant. To restrain the defendant from carrying on this business there would render the improvements comparatively worthless and cause irreparable loss to the defendant, who purchased and expended his money in establishing this business in good faith, believing that no one would object to his carrying on his cow-stable in this locality so long as he caused no nuisance. It also appears that whilst a considerable portion of the eighty-acre tract is, by reason of depressions in the surface, and contiguity to the railroad, unsuited for residence purposes, yet that, in other parts of the tract, lots have been sold to purchasers who have erected handsone dwellings and ornamental improvements, and who reside there with their families.

The rule is that a party will not be permitted to use land in a manner inconsistent with the contract entered into with his vendor, and with notice of which he purchased. And if the right at law under the covenant is clearly established, and the breach is clear, and the covenant one that can be specifically enforced, the courts will not, unless under exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction. But though the fact that there has been a breach of the covenant is a sufficient ground for the interference of a court of equity, there are cases, in which there has been no appreciable or substantial damage, in which an injunction will be refused. Kerr on Inj. 531-533. So, where ground had been conveyed on condition that the bargainees should be restricted to the privilege of erecting and running a saw-mill on the premises; they used the building for other purposes; no injury was shown to be likely to result to the plaintiff from the additional machinery; considerable expense had been incurred in its construction, and the plaintiff had slept upon his rights; the court refused to interfere by injunction. Water Lot Co. v. Bucks, 5 Ga. 315. So, in Whitney v. Railroad Company, 11 Gray, 367, it is said that a suit in equity to compel compliance with such stipulations concerning the use of property must be seasonably commenced, before the persons in possession have expended money in erecting buildings on the premises. It would be...