Kling v. Taylor-Morley, Inc., TAYLOR-MORLE

• Citation: 929 S.W.2d 816
• Decision Date: 16 July 1996
• Docket Number: No. 69229,INC,TAYLOR-MORLE,69229
• Parties: Stephen L. KLING, Jr., et al., Plaintiffs-Respondents, v., Defendant-Appellant. Division Two
• Court: Court of Appeal of Missouri (US)

Page 816

929 S.W.2d 816

Stephen L. KLING, Jr., et al., Plaintiffs-Respondents, v. TAYLOR-MORLEY, INC., Defendant-Appellant.

No. 69229.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 16, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1996.

Application to Transfer Denied

Oct. 22, 1996.

Merle L. Silverstein, Clayton, for appellant.

Jason M. Rugo, St. Louis, for respondents.

CRAHAN, Presiding Judge.

Defendant, Taylor-Morley ("Developer") appeals an adverse judgment enjoining the construction of an office building and declaring its development to be in violation of a restrictive covenant enacted by prior owners of the property. We affirm.

At the core of this dispute is an agreement establishing a restrictive covenant allocating benefits and burdens to the properties along Questover Lane ("Lane"). At the time of the agreement's inception, Lane was entirely a private roadway, lined with large single family dwellings. The covenant was adopted by the residents and owners along Lane ("Owners").

Lane's only access to outside roadways is at its northern end where it meets Olive Boulevard. The agreement was twice amended to encompass the southward extensions of Lane and the development of new residences. Last amended in 1967, the agreement as currently in effect provides, inter alia: (1) that an easement be granted in favor of each party for the use of Lane and for public utility purposes; (2) that the signatory parties would be jointly responsible for the maintenance of Lane; (3) that three trustees would be appointed from the resident owners to oversee this maintenance and approve all future construction along Lane and (4) that no property abutting or adjoining the above easement for Lane shall be used for any other purpose than that of single family residential use.

In 1975, pursuant to a condemnation proceeding, the state took an easement over the northern end of Lane to relocate its entrance to Olive. When the relocation was completed the state quitclaimed its easement to the City of Creve Coeur. After this relocation all of Lane except for approximately the northernmost 200 feet remained private.

Developer subsequently purchased a tract of land on the northern edge of Lane. This parcel fronted against both the private and now public sections of Lane. In 1994, Developer received permission from the City of Creve Coeur to construct a three story commercial office building with 189 parking spaces on this parcel. The parking lot for this development would have only one exit, which would be connected to the public section of Lane. Owners are concerned that this exit would create a bottleneck and obstruct their only access to Olive and the outside world.

Owners and Developer discussed various proposals that would allay Owner's concerns while allowing construction of the facility. When these discussions proved unsuccessful, and Developer indicated an intention to continue, Owners filed suit. Owners sought declaratory judgment that Developer was subject to the agreement and that this development violated the provision prohibiting all buildings save single family residences. The trial court so declared and issued an injunction enjoining construction of the office building. Developer appeals.

Developer complains that the trial court erred in issuing its declaratory judgment and injunction because: (1) the agreement does not run with the land and therefore only applies to its signatories; (2) the relevant prohibitions of the agreement have been waived by Owners; and (3) the agreement does not apply to the parcel to be developed as it no longer abuts or adjoins the private section of Lane.

In this court-tried equity action, the ruling of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Simcox v. Obertz, 791 S.W.2d 440, 442 (Mo.App.1990).

Restrictions upon the free use of land are not favorites of the law. Simcox, 791 S.W.2d at 442. However, a restrictive covenant is a private contractual obligation generally governed by the same rules of construction applicable to any covenant or contract. Kauffman v. Roling, 851 S.W.2d 789, 792 (Mo.App.1993). The primary rule in the interpretation of a contract is to ascertain the intent of the parties and to give effect to those intentions. Id.

Where possible, courts give effect to the intent of the parties as expressed in the language of the covenant. Stolba v. Vesci, 909 S.W.2d 706, 708 (Mo.App.1995). In doing so, terms should be given their plain, ordinary and usual meaning. Id. However, where the meaning is in doubt, it is proper to consider the intentions of the parties. Id. In determining these intentions, courts inquire into the purpose sought to be accomplished and the accompanying circumstances at the time of the restrictive covenant. Id.

Developer first contends that the plain language of the covenant indicates an intention of its creators that it should be a personal covenant as opposed to a real covenant. Real covenants are those which "touch or concern" or benefit the land and are said to run with the land. Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309, 312 (Mo.App.1981). Personal covenants are promises made by grantor and grantee which generally concern the use of the land. Id. These covenants do not run with the land but are binding on those who purchase with actual or constructive knowledge of the covenant. Id.

In support of its argument that the instant covenant is personal, Developer relies upon the absence of any express language in the agreement providing that the covenant run with the land and more specifically on Paragraph "E" on page 6 of the agreement. This paragraph provides That permission shall not be granted to any person, firm or corporation to use said Questover Lane as described in parcels 1 and 2 above, or as same is platted and laid out in Parcel 3 above or to West Questover Lane as hereinabove referred to, unless such person, firm or corporation for himself, themselves or itself subscribes to and agrees to the terms and conditions thereof as to the property served by said Questover Lane and West Questover Lane, and unless the owner or owners of such parcels subject the same to these restrictions.

Developer reads this paragraph as a proscription against alienation of any of the subject property unless the intended purchaser agrees to abide by the terms of the agreement. Developer then reasons that such a paragraph mandating the extension of the restrictive provisions to new buyers would be unnecessary if the covenant was intended to run with the land. Owners interpret paragraph "E" as a restriction on the use of...