Hanna v. Nowell, No. 7801

CourtCourt of Appeal of Missouri (US)
Writing for the CourtRUARK; STONE, P. J., and McDOWELL
Citation330 S.W.2d 595
Docket NumberNo. 7801
Decision Date19 December 1959
PartiesBilly C. HANNA and Elma Hanna, Plaintiffs-Respondents, v. Bob NOWELL, Roy Alsup, Ross Alsup, and Richard Hanna, a partnership, d/b/a Alsup and Associates, Defendants-Appellants.

Page 595

330 S.W.2d 595
Billy C. HANNA and Elma Hanna, Plaintiffs-Respondents,
v.
Bob NOWELL, Roy Alsup, Ross Alsup, and Richard Hanna, a
partnership, d/b/a Alsup and Associates,
Defendants-Appellants.
No. 7801.
Springfield Court of Appeals, Missouri.
Dec. 19, 1959.

Page 597

Robert A. Dempster, Daniel S. Norton, Sikeston, for defendants-appellants.

Weber Gilmore, Sikeston, for plaintiffs-respondents.

RUARK, Judge.

What is an eave? The principal question in this case involves construction, not of an eave, but an instrument which excepts eaves.

Defendants-appellants appeal from a mandatory injunction requiring them to remove all portions of a building which extend within eight feet of a property line. 1 The properties involved are located within Hunter Acres First Addition to the City of Sikeston, a residential district. There was in effect and of record a 'Delaration in re: Conditions and Restrictions * * *' Paragraph h of said restriction as interpreted by the parties forbids the erection of any building which, with exception of eaves, extends closer than eight feet of the property line. 2

Page 598

The best we can gather from a somewhat confusing record, it appears that the new dwelling house which is charged with offending against the restrictions is some 69 feet long across (north-south) the defendant Nowell's 85-foot lot. The south end of this house is what is rather commonly called a carport. A driveway 11 feet and 11 inches in width extends from the street to and under the carport. However, at the east entrance under the edge of the roof of the carport is set a 4 X 4 post which from the exhibit appears to be approximately 9 feet high. This post necessarily narrows the entrance into the carport to a width of 9 feet and 11 inches. It supports the weight of all that portion of the building on that side which extends over the carport. The front of the carport is of course open on both sides of the post. The south end (the offending end) is likewise open except for a low planter extending along the south edge. The rear of the carport is about halfway enclosed, and presumably the enclosure harbors another supporting post. The residence is one story with a ridge roof, and all that portion of the roof and all that portion of the building above the doors and windows extends in one continuous line and character of construction from north to south, over the carport and beyond the post heretofore mentioned, a distance which we find difficult to determine exactly from the record, but somewhere in the neighborhood of 3 feet. The south (upper) end of this extension has been boarded in or made into (at least the appearance of) a gable. The roof and roof covering down both sides of the 'V' over the gable extend outward from the boarded-in wall some distance. This extension of the roof and roof covering beyond the south wall of what we now refer to as the gable end will be hereinafter determined to be an eave as applied to the facts and record in this case, so we will refer to it as an eave. The record does not give us the distance this eave extends from the roof or gable end, nor are we able to say whether or not it is included in the approximate 3-foot distance which projects beyond the supporting carport post. Again referring to the picture exhibits, it would appear that such eaves stick out southward approximately 8 inches. The whole of the carport extension appears to have a finished ceiling. The supporting carport post which we have heretofore mentioned is (now) approximately 8 feet from the south property line and just within compliance with the 8-foot restriction. The upper portion, however, including the roof and all that part of the structure below it, including the beams which support it and the ceiling--that is, all that portion of the building above the doors and windows--extends southward beyond the post and to within approximately 5 feet and 1 inch of the south property line. Thus the upper portion of the building projects or hangs over and beyond the restriction line, although no part of it comes down to or is supported by anything which reaches to the ground within the restricted area.

Appellants' first and principal contention is that the whole projection is an 'eave,' and to sustain such contention they call upon the rules of construction normally applied to the interpretation of restrictions having to do with the free and untrammeled use of property.

Page 599

The attitude of the courts is that covenants of restriction are not favorites of the law and where the meaning is doubtful and construction is called for they will be construed strictly according to their plainly expressed language. They will not be extended by implication, and any reasonable doubt as to their meaning will be resolved in favor of the free use of the land. 3 Of course if the meaning is plain and not ambiguous, no construction is called for. 4 The primary object in construing any instrument of this character is to ascertain the intention of the parties, and this almost necessarily requires an inquiry into the purpose which the parties sought to accomplish. Such purpose may be gathered not only from the particular clause or phrase under scrutiny but as it may be understood in the light of all other provisions of the instrument. 5 And unless it appears that the words of the restriction are intended to be used and interpreted in a technical or restricted sense, the language is to be read and applied according to the plain, everyday or popular meaning of the words.4

Adverting now to the word 'eaves': Appellants say an eave is any projection of the roof. Respondents say an eave is only the projection of the lower edge of the roof. We think both are wrong in this case.

Webster's New International Dictionary, 2d ed., says eaves are 'the edges or lower borders of the roof of a building which overhang the walls.' (This is respondents' theory.)

Funk & Wagnalls New Standard Dictionary of the English Language defines eaves as 'the projecting edge of a roof, serving to shed rain-water.'

It is said that eaves are 'the edges of the roof projecting beyond the face of the walls.' 28 C.J.S., p. 826, citing Proprietors of Center St. Church v. Machias Hotel Co., 51 Me. 413, 414. (Appellants say the structure here is such an extension.)

'While there is a great variety in the design of eaves, in order to express the character of the building and the mood of the architect, * * * in all cases the practical purpose is to close the junction of the roof rafters with the wall construction and to dispose of the water flowing down the roof slope.' Charles Merrick Gay and Harry Parker, Materials and Methods of Architectural Construction, p. 205.

Milton refers to eaves in language

While rocking winds are piping loud,

Or ushered with a shower still,

When the gust hath blown his fill,

Ending on the rustling leaves,

With minute-drops from off the eaves. 6

If we indulge in recollection of our grandfathers when they built their log cabins of native oak, lime and horsehair were not at first available for chinking. The rain was wont to run down, seep through and between the logs, and wash the mud or clay down the walls; and the wind would blow rivulets of the dripping or seeping water between the cracks, not only along the sides but on the front and back as well. An overhang was just as necessary on the slanting ends as on the sides which had the lower edges of the roof. Hence this overhanging portion of

Page 600

the roof became a shelter part which furnished partial shelter to a part of the shelter. The extension of the roof covering, or the overhang, in order to keep the dribbling water from creeping between the walls, was one application of resourcefulness on the part of those sturdy pioneers from whom we have degenerated. Many of the necessities of our forefathers have disappeared in our present-day gadgeteered and debilitated life, but the meaning of words, the image produced by their expression, is still a part of our inheritance. Conceding that an eave may serve several purposes, we believe that technically, poetically, and historically its fundamental and basic purpose is to keep the rain from running down the exterior sidewalls. A reasonable extension of the roof edge which fulfills that purpose is an eave, and we believe that is its common or popular meaning.

This we think is a liberal interpretation of the meaning of an eave exception. But this interpretation does not mean that any and all extensions from the end are eaves. If the basic function is to keep water from the exterior walls, a departure from such basic purpose in pursuit of an entirely different end and to perform another totally different function destroys its character, and appellant's contention becomes a false syllogism, i. e., an eave is an extension of the roof; a carport is an extension of the roof; ergo a carport is an eave. Not by applying either the lubricant of liberality, even imagination, of liberal construction, or the astringency of strict construction, can we compress the upper part of this structure, which is the whole end of the building, into an eave. Its purpose is not to furnish shelter to an exterior wall; there is...

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7 practice notes
  • Martinelli v. Security Ins. Co. of New Haven, No. 34500
    • United States
    • Court of Appeal of Missouri (US)
    • November 21, 1972
    ...it must, in some manner, suffer a legal detriment, change his position for the worse and be prejudiced. Hanna v. Nowell, Mo.App., 330 S.W.2d 595(9); Mo.Digest k56, Estoppel; Schmidt v. National Auto. & Cas. Ins. Co., 8th Cir., 207 F.2d 301, 38 A.L.R.2d 1142, 1157--1160. See also Taylor ......
  • Brasher v. Grove, No. 9962
    • United States
    • Court of Appeal of Missouri (US)
    • May 10, 1977
    ...decree which required removal of the five units is involved here. 2 Each of the preceding statements is supported by Hanna v. Nowell, 330 S.W.2d 595, 599(1-5) (Mo.App.1959) and authorities there cited. 3 Buoncristiani v. Randall, 526 S.W.2d 68, 72(6) (Mo.App.1975); Greenberg v. Koslow, 475 ......
  • Daniel v. Galloway, No. 17979
    • United States
    • Court of Appeal of Missouri (US)
    • August 20, 1993
    ...into the purpose the parties sought to accomplish by the restrictive covenant. Phillips v. Schwartz, 607 S.W.2d at 207; Hanna v. Nowell, 330 S.W.2d 595, 599 (Mo.App.1959). The critical time in determining what was intended by the restrictions is at the time the subdivision was platted. Phil......
  • Heinrich v. Hinson, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • June 9, 1980
    ...upon regarding acquiescence and laches are some of the factors to be weighted in "balancing the equities". Hanna v. Nowell, 330 S.W.2d 595, 603 (Mo.App.1959). The judgment of the trial court may also be said to reflect a proper balancing of the equities in light of the totality of......
  • Request a trial to view additional results
7 cases
  • Martinelli v. Security Ins. Co. of New Haven, No. 34500
    • United States
    • Court of Appeal of Missouri (US)
    • November 21, 1972
    ...it must, in some manner, suffer a legal detriment, change his position for the worse and be prejudiced. Hanna v. Nowell, Mo.App., 330 S.W.2d 595(9); Mo.Digest k56, Estoppel; Schmidt v. National Auto. & Cas. Ins. Co., 8th Cir., 207 F.2d 301, 38 A.L.R.2d 1142, 1157--1160. See also Taylor ......
  • Brasher v. Grove, No. 9962
    • United States
    • Court of Appeal of Missouri (US)
    • May 10, 1977
    ...decree which required removal of the five units is involved here. 2 Each of the preceding statements is supported by Hanna v. Nowell, 330 S.W.2d 595, 599(1-5) (Mo.App.1959) and authorities there cited. 3 Buoncristiani v. Randall, 526 S.W.2d 68, 72(6) (Mo.App.1975); Greenberg v. Koslow, 475 ......
  • Daniel v. Galloway, No. 17979
    • United States
    • Court of Appeal of Missouri (US)
    • August 20, 1993
    ...into the purpose the parties sought to accomplish by the restrictive covenant. Phillips v. Schwartz, 607 S.W.2d at 207; Hanna v. Nowell, 330 S.W.2d 595, 599 (Mo.App.1959). The critical time in determining what was intended by the restrictions is at the time the subdivision was platted. Phil......
  • Heinrich v. Hinson, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • June 9, 1980
    ...upon regarding acquiescence and laches are some of the factors to be weighted in "balancing the equities". Hanna v. Nowell, 330 S.W.2d 595, 603 (Mo.App.1959). The judgment of the trial court may also be said to reflect a proper balancing of the equities in light of the totality of......
  • Request a trial to view additional results

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