Miller v. Klein

• Decision Date: 04 November 1913
• Citation: 160 S.W. 562,177 Mo. App. 557
• Parties: MILLER v. KLEIN et al.
• Court: Missouri Court of Appeals

160 S.W. 562

177 Mo. App. 557

MILLER v. KLEIN et al.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

1. PLEADING (§ 34) — CONSTRUCTION ON APPEAL — PRESUMPTIONS.

If a petition is not objected to below by demurrer or objection to evidence as not averring a cause of action, every reasonable inference

will be indulged in its favor on such objection being made on appeal, and it will be sustained if by fair intendment it impliedly states a cause of action.

2. COVENANTS (§ 84) — RESTRICTIVE COVENANTS — PERSON BOUND.

Grantees of lots are charged with knowledge of, and bound by, the building restrictions contained in the recorded deed to their grantor.

3. INJUNCTION (§ 62) — BREACH OF RESTRICTIVE COVENANTS.

One who has a right to enforce a restrictive building covenant placed on such property may restrain its violation, whether or not she is substantially injured by such violation.

4. COVENANTS (§ 103) — RESTRICTIVE COVENANTS — VIOLATION — EXCUSES.

The fact that a lot on which restrictive building covenants were imposed by a deed, by forbidding the erection of apartment houses, would be more valuable when used for apartment houses than for single residences would not justify the violation of such covenant.

5. COVENANTS (§ 108) — RESTRICTIONS — ESTOPPEL.

A property owner could not be estopped from objecting to the breach of a restrictive building covenant by another owner by erecting an apartment house on his lot, on the ground that other apartment houses had been erected on adjoining property, unless he had actual knowledge of the erection of the other structures contrary to the restrictions; mere silence or inaction being insufficient in the absence of fraud.

6. COVENANTS (§ 69) — RESTRICTIVE BUILDING COVENANTS — EQUITABLE EASEMENTS.

Restrictive covenants, such as one prohibiting the erection of apartment houses on lots platted and sold under deeds containing such restriction, are equitable easements which run with the land.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Louisa K. Miller against Sabastian Klein and another. From a decree for plaintiff, defendants appeal. Affirmed.

Seddon & Holland, of St. Louis, for appellants. Bishop & Cobbs, S. C. Rogers, and W. S. Connor, all of St. Louis, for respondent.

ALLEN, J.

This is a suit to enjoin the defendants from erecting what is known as flats or apartment buildings upon certain parcels of land in the city of St. Louis, upon the ground that the same would be in violation of certain restrictions imposed by deed upon the use thereof. Defendant Klein is the owner of the land in question, and the defendant Robinson had contracted with his codefendant Klein to erect thereupon for the latter buildings of the character mentioned. Plaintiff is the owner of a lot of ground in the vicinity of that of defendant Klein, subject to the same restrictions, and imposed by the same deed as those affecting the property of defendant Klein, and upon which she has erected a residence. The court below found the issues in favor of plaintiff, and entered a decree perpetually enjoining the defendants from erecting the buildings in question, from which judgment the defendants prosecute this appeal.

It appears that in the year 1905 the West End Realty Company, a corporation, owned a tract of land in the city of St. Louis, bounded on the north by Delmar avenue, a street of said city, on the east by the River Des Peres and the right of way of the Wabash Railroad Company, on the south by the right of way of the St. Louis, Kansas City & Colorado Railroad Company, and on the west by Skinker road, another street of said city. Said property was then unrestricted, and the said West End Realty Company, on December 1, 1905, conveyed the same, without restrictions, by deed of trust to the Missouri Lincoln Trust Company, a corporation, to secure the payment of certain notes. This deed of trust contained a provision for the release of lots in said tract upon sales thereof being made by the owner of the equity of redemption. On January 9, 1907, the West End Realty Company filed, in the office of the recorder of deeds of the city of St. Louis a plat to the above-described property in which the same was designated as "Washington Heights," and also described as being city blocks numbered from 5415 to 5428, inclusive of the city of St. Louis. Such plat contained nothing showing restrictions, beyond a building line. As so platted, the said tract of land, or subdivision, is intersected by but one street extending north and south, to wit, Rosedale avenue, and by the following streets extending east and west, mentioned in their order from north to south, to wit: Washington avenue, Westminster place, Kingsbury avenue, McPherson avenue, Waterman avenue, and Berlin avenue. After the execution of the deed of trust aforesaid, the West End Realty Company, at various dates prior to March 21, 1908, conveyed certain lots in this tract; the aforesaid trust company executing releases thereto. These various lots were conveyed under deeds differing much in form. Some of the lots, chiefly upon the edges of the tract, were conveyed without restrictions of any kind, but it appears that the bulk of the property fronting on Washington avenue, Westminster place, Kingsbury avenue and McPherson avenue, and lying west of Rosedale avenue, was sold with restrictions against the building of flats. On July 25, 1907, the West End Realty Company conveyed to the November investment Company a number of lots, amounting in all to about 100, located and fronting on Washington avenue, Westminster place, Kingsbury avenue, McPherson avenue, Waterman avenue and Berlin avenue. The deed by which the November Investment Company acquired these lots provided that the same were conveyed subject to the following restrictions: "No business house shall be erected on any of said lots, nor shall any flats or apartments be erected on any of said lots, and only one residence shall be erected on any one lot, and no residence shall be erected on any of said lots to cost less than as follows, to wit: On lots fronting on Washington avenue, $4,000.00; on lots fronting on Westminster place, $4,500.00; on lots fronting on Kingsbury and McPherson avenues, $5,000.00; and on lots fronting Waterman avenue, $5,500.00; but it is expressly covenanted that none of the foregoing restrictions shall apply to any lot located on Berlin avenue, and also subject to the established `building line' as is recorded with the recorder of the city of St. Louis, said established `building line' to apply to all real estate conveyed hereunder, but all of the foregoing restrictions shall expire and be of no force and effect after the first day of January, 1923." On March 21, 1908, the above-mentioned deed of trust was foreclosed, and under such foreclosure a transfer was made to the Nina Realty Company of all of the lots which had not been previously disposed of as above mentioned. The title acquired by the Nina Realty Company to these lots carried with it no restrictions. Both plaintiff and defendant Klein acquired their lots from the November Realty Company, being among the lots conveyed to the latter company by the West End Realty Company by the aforesaid deed of July 25, 1907, containing the restrictions above set out. Plaintiff acquired her lot by deed of March 27, 1909, and it is known as lot No. 12 in block 5417, located on the south side of McPherson avenue. Defendant Klein's property was acquired by him by deed of March 8, 1910, and is known as lots 5 and 6 and the west 10 feet of lot 7 in block 5416, fronting on the south line of Waterman avenue, and being one block south of the property owned by plaintiff.

It is unnecessary for us to set out the pleadings in full. The petition avers the ownership by plaintiff and defendants of their respective parcels of land, the conveyances of the lots above mentioned by the West End Realty Company to the November Investment Company of July 25, 1907, of which the lands of plaintiff and defendant were a part, and sets out in full the restrictions in said deed which we have copied above. It is then averred that plaintiff and the defendant Klein acquired their respective...