Mathews Real Estate Co. v. National Printing & Engraving Co.

• Decision Date: 08 April 1932
• Docket Number: 29618
• Citation: 48 S.W.2d 911,330 Mo. 190
• Parties: Mathews Real Estate Company, a Corporation, Appellant, v. National Printing & Engraving Company, a Corporation
• Court: Missouri Supreme Court

48 S.W.2d 911

330 Mo. 190

Mathews Real Estate Company, a Corporation, Appellant, v. National Printing & Engraving Company, a Corporation

No. 29618

Supreme Court of Missouri

April 8, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Affirmed.

Polk Williams & Campbell for appellant.

(1) The uniform provisions of these deeds, executed on the same day pursuant to an auction held under the advertisements introduced in evidence, plainly establish the restrictions as equitable eastments for the benefit and protection of the various lot holders. Nottingham Brick & Tile Co. v. Butler, L. R. 16 Q. B. D. 778; Ames' Cases in Equity Jurisprudence, Parts I-VI, at foot of page 172; Hale v. Wesster, 7 Mo.App. 62; Doerr v. Cobbs, 146 Mo.App. 354; Tiedeman on Real Property (3 Ed.) sec. 433, p. 623. (2) The fact that some deeds subsequent to the various original deeds made no reference to these restrictions is utterly immaterial. The defendant took with actual and constructive notice. Wiegman v. Kusel, 270 Ill. 520; King v. Trust Co., 226 Mo. 351; Duester v. Alvin, 74 Ore. 544; Chapin v. Dougherty, 165 Ill.App. 426; Peck v. Conway, 119 Mass. 546. (3) (a) The restrictions pointed out one method for removal, and that method had not been pursued. (b) The business erected and conducted by defendant is in plain violation of the restrictions, because that business constitutes a manufacturing plant. Evening Journal Assn. v. State Board, 47 N. J. L. 36; Press Printing Co. v. State Board, 51 N. J. L. 75; In re Kenyon, 1 Utah, 47; Commonwealth v. Mann Co., 150 Pa. 70. (c) A restriction is, for the purposes of interpretation, a species of contract, and the purpose of interpretation is to arrive at the true intention of the parties. Pierce v. Trust Co., 311 Mo. 262. (d) The restriction plainly forbids any manufacturing business whatsoever. (4) The meaning of the word "offensive:" Top-Heatly v. Benham,40 Ch. D. 97; Woods v. Cooper, 3 Ch. D. 677; Evans v. Foss, 194 Mass. 513; Wauton v. Coppard, 1 Ch. 97; Nussey v. Posting Co., 1 Ch. 734; Seymour v. McDonald, 4 Sandf. Ch. 502; Pierce v. Trust Co., 311 Mo. 262; Barrow v. Richard, 8 Paige, 351. (5) Improvements outside the particular subdivision are immaterial. Bolin v. Investment Co., 178 Mo.App. 8; Thompson v. Langan, 172 Mo.App. 84; Noel v. Hill, 158 Mo.App. 445; Spahr v. Cope, 143 Mo.App. 114; Pogenstecker v. Carlson, 131 N.Y.S. 413, 146 A.D. 738. (6) (a) "Offensive" not applicable to high-grade flats or apartments. Morrison v. Hess, 231 S.W. 997; Kitching v. Brown, 180 N.Y. 414. (b) Failure to take notice of such violations as do not affect plaintiff. Brigham v. Malock Co., 74 N.J.Eq. 287; Ward v. Prospect Manor Corp., 188 Wis. 534; Johnson v. Robertson, 135 N.W. 585; Newberry v. Borkalow, 75 N.J.Eq. 125; Compton Hill Imp. Co. v. Hrauch, 162 Mo.App. 76; Thompson v. Langan, 172 Mo.App. 64; Allen v. Mass. B. & I. Co., 248 Mass. 370; Alderson v. Cutting, 163 Cal. 503; O'Gallagher v. Lockhart, 263 Ill. 489; Sagles v. Hall, 210 Mass. 281; De Galan v. Barak, 223 Mich. 378; Schadt v. Brill, 173 Mich. 647; Green v. Gerner, 283 S.W. 615; Landell v. Hamilton, 175 Pa. St. 327; Brown v. Huber, 80 Ohio St. 183; Waters v. Collins, 70 A. 984; Seawright v. Blount, 139 Ga. 323; Bowen v. Smith, 74 N.J.Eq. 287; Evertsen v. Gerstenberg, 186 Ill. 344; Payson v. Burnham, 141 Mass. 547; Du Bois v. Darling, 12 Jones & S. 436; Bacon v. Sandberg, 179 Mass. 396; Zipp v. Barker, 40 A.D. 1, 166 N.Y. 621; 46 A. L. R. 372; German v. Chapman, L. R. 7 Ch. D. 271. (7) The court erred in refusing evidence to prove wherein the particular plant was offensive. (8) Laches not applicable. Miller v. Klein, 177 Mo.App. 572; Yeomans v. Herrick, 178 Mo.App. 280; Davies v. Keiser, 246 S.W. 897; St. Louis Safe Deposit Co. v. Kennett, 101 Mo.App. 397. (9) The facts shown constitute a complete refutation of laches.

Nagel & Kirby and E. G. Curtis for respondent.

(1) Restrictions on the free and untrammeled use of real property are regarded unfavorably by the courts and are, therefore, strictly construed. 18 C. J. 385, sec. 449-B; Scharer v. Pantler, 127 Mo.App. 433; Williams v. Carr, 213 Mo.App. 225; Charlots v. Regents Merc. Corp., 251 S.W. 423; Reformed P. D. Church v. M. A. Bldg. Co., 214 N.Y. 274. (2) Where, owing to the natural growth of a city, circumstances have changed so that the purpose of a restriction on the use of property can no longer be accomplished, a court of equity will not enforce such restriction. 18 C. J. 400, sec. 465 (3); Koehler v. Rowland, 275 Mo. 573; Forstmann v. Joray Holding Co., 244 N.Y. 29; Frigo v. Janek, 237 Mich. 644; Batchelor v. Henkle, 210 N.Y. 251; Kniep v. Schroeder, 255 Ill. 628; Columbia College v. Thacher, 87 N.Y. 311; Jackson v. Stevenson, 156 Mass. 496; McArthur v. Hood Rubber Co., 221 Mass. 376; Schwarz v. Duhne, 103 N.Y.S. 14; Douns v. Kroeger, 254 P. 1102.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Suit for injunction brought and prosecuted in the Circuit Court of the City of St. Louis, to restrain the alleged violation of certain building restrictions and to compel the demolition and removal of defendant's building, erected in 1925 at a cost of $ 47,000. The amount in dispute is sufficient to give this court jurisdiction of the appeal. The suit was instituted May 11, 1925. It was tried and submitted in the circuit court January 11 1928, and by the court taken under advisement until December 18, 1928, when the court rendered judgment dismissing plaintiff's bill, from which plaintiff appealed.

The restricted district in which plaintiff's and defendant's properties are located, consists of a single block about 1366 feet long, and about 446 feet wide, the longer dimension being east and west. It is bounded on its east and west ends by Sarah Street and Boyle Avenue respectively, on its north side by West Pine Street and on its south side by Laclede Avenue. It contains 54 lots. Lots numbered 1 to 27 inclusive front south on Laclede Avenue and lots numbered 28 to 54 inclusive front north on West Pine Street. Each lot is 50 feet in width except the four corner lots which are somewhat wider, and each lot has a depth of approximately 210 feet. Running lengthwise through the center of the block from Sarah Street to Boyle Avenue there is a paved alley 26 feet wide. Plaintiff owns lot 35 fronting on West Pine Street (which for convenience we shall call Pine Street). Defendant owns lots 19 and 20, fronting Laclede Avenue, lot 20 being directly south of and across the alley from plaintiff's lot and lot 19 east of and adjacent to lot 20. The block in question is now city block No. 3915, of the city of St. Louis.

In 1880 the land now comprising this block belonged to the Bank of California. It and the adjacent territory was then vacant, the city not having been built up that far west. The bank, desiring to sell, platted this ground and offered the lots for sale at an auction held June 9, 1880, having advertised the lots as desirable "for the purpose of elegant city homes, along the chief promenades to Forest Park, where all the more costly and ornate residence improvements seem to be tending." The advertisement contained this promise: "Conformably to the management generally urged for this region, the deeds to the bank property will be issued with prohibitory clauses against the starting or maintaining on it of any business or thing of nuisance to a first class residence locality; also, they will contain a clause establishing a building line 20 feet from the street line." The lots were all sold on June 9, 1880, and on the same day deeds were made to the various purchasers, each of which contained the following provision: "This deed is made, delivered and accepted subject to the following express restrictions and reservations, towit:

"First: No building of any description shall be erected upon the premises hereby conveyed any wall of which shall be nearer than twenty feet to the front line of said premises.

"Second: Unless the consent of every lot owner in said subdivision shall be first had and obtained in writing, duly executed and acknowledged, and recorded in the Recorder's Office of the city of St. Louis, there shall never be established, carried on, or conducted upon said premises, or any part thereof, or within any building or erection thereon, any manufacturing business, slaughter house, soap factory, dairy, livery stable or other nuisance, nor any dram shop, theater, circus or other place of business or public amusement that may be regarded as objectionable by the residents of a first class residence neighborhood."

Plaintiff and defendant both acquired title through mesne conveyances from purchasers at said sale of June 9, 1880. Plaintiff bought the property now owned by it in 1912. Defendant bought its lots 19 and 20 early in 1925. They were then vacant. Defendant bought with actual as well as constructive knowledge of the restrictions, intending to erect thereon its present building, which it completed that year. The building is a one-story brick structure covering both lots, extending from the building line twenty feet from the north street line of Laclede Avenue to the alley. The business conducted therein by defendant consists of the printing of posters display advertising, certain kinds of tickets, etc. "We do display printing, such as window trims, cutouts, show cards, hangers, posters, fiber signs, muslin signs. We have what we call artists, and we design posters and display cards and things like that." It does not manufacture the materials upon which the printing is done, but fashions them from the sheet form in which they are purchased to meet the customers' requirements. At the time of the trial defendant had twenty-two or...