Morrison v. Hess

• Court: Missouri Supreme Court
• Writing for the Court: Bailey
• Citation: Morrison v. Hess, 231 S.W. 997, 18 A.L.R. 433 (Mo. 1921)
• Decision Date: 24 May 1921
• Docket Number: No. 21698.,21698.
• Parties: MORRISON et al. v. HESS et al.

231 S.W. 997

MORRISON et al. v. HESS et al.

No. 21698.

Supreme Court of Missouri, in Banc.

May 24, 1921.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Suit by Robert W. Morrison and others against Herman Hess and others. From decree for defendants dismissing the bill, plaintiffs appeal. Decree reversed,' and cause remanded, with directions to enter decree for plaintiffs, with damages and costs.

This action was commenced in the circuit court of the city of St. Louis, Mo., on October 3, 1916, by the above-mentioned plaintiffs, who are residents and owners of homes in city block 4864 of the city of St. Louis, Mo., to enjoin said defendants from constructing, upon a portion of said block 4864, a three-story apartment house, containing 36 separate and distinct apartments, in violation of the restrictions in the deed under which said defendants claim title, which recites that not more than one dwelling house may be constructed on the 50-foot front of said lot.

The defendants answered, partially admitting the allegations of petition, denying other averments therein, and pleading, by way of waiver and abandonment, that the above restriction was no longer in force. The reply is a general denial of the new matter contained in the answer.

The evidence shows that Selah Chamberlain, a resident of Ohio, was the owner of city block 4864, in St. Louis, Mo., bounded on the south by Maple avenue, running east and west, and by Chamberlain avenue on the north, also running east and west; that prior to May 31, 1887, said Chamberlain and wife sold all of the property in said block 4864 to various persons; and that each and every deed made by him contained the same covenants and restrictions as are recited in the deed to defendant Hess. On May 31, 1887, said Selah Chamberlain, who was then the owner of five or six tracts of land lying in the vicinity of said block 4864, filed a plat in the recorder's office, laying off said last-described tracts of land into lots and blocks, and designating the same as Chamberlain Park. The latter entirely surrounded block 4864 supra, except on the south.

It was stipulated and agreed at the trial:

"That all of the plaintiffs and the defendants own property in city block No. 4864 and hold title to their said property by and through deeds from Selah Chamberlain, and that all of the deeds through which all of the plaintiffs and all of the defendants held title contained the same covenants and restrictions as those contained in the deed from Selah Chamberlain and wife to Josiah A. Parker, * * * and that all of the property in city block No. 4864 is subject to the same restrictions, and is held under a common source of title, namely, Selah Chamberlain, and that' all of the property in city block No. 4864, had been sold by said Selah Chamberlain prior to May 31, 1887."

The deed from Chamberlain and wife to Josiah A. Parker aforesaid is dated February 19, 1887, and, among other things, contains the following:

"The foregoing conveyance and grant is hereby declared to be subject to and limited by the following exceptions, reservations, conditions, and reversion: That neither said grantee nor any one claiming by, through, or under him prior to the last day of December, A. D. 1920: L Shall construct or allow to be constructed on the premises above described any dwelling house less than two stories in height. II. Shall construct or allow to be constructed more than one such dwelling on each 50-foot front of said lot. III. Shall construct or allow to be constructed thereon any dwelling to cost less than $4,000 in cash, nor locate or erect such dwelling nearer than 30 feet to the line of the street on which such dwelling fronts. IV. Shall construct or allow to be constructed any stable, shed, or outhouse nearer to any public driveway than 100 feet. V. Shall construct or allow to be constructed or erected, or to exist, any nuisance, or any livery stable or manufacturing establishment of any kind on said premises. VI. Shall construct or allow to be constructed, used, or occupied, any grocery store, barroom, or business place for the bargain and sale of any kind of merchandise on said premises."

It is conceded that defendant Hess, about 60 days before the trial below, bought from defendant Schwenker the following described property, to wit:

"A lot in Chamberlain Park in block No. 4864 of the city of St. Louis, having a front of 125 feet on the north line of Maple avenue, by a depth northwardly between parallel lines of 155 feet to a line, bounded on the west by a ine 130 feet east of the east line of Clara avenue."

It is admitted that the above deed to Hess contains the same covenants, restrictions, etc., as are recited in the deed from Chamberlain to Parker aforesaid. It is also undisputed that defendant Hess knew of the above restrictions when he was negotiating for said property, and when he received his deed therefor.

It appears from the evidence that all of the property in said block 4864, except about 200 feet which was vacant, had been improved, before defendant Hess purchased his property, with high-class residences, owned by the plaintiffs; that each of said houses was used as a single family dwelling house, was more than two stories in height, and each cost from $10,000 to $15,000; that each house occupied 50 feet or more of ground, fronting on either Chamberlain avenue or Maple avenue; that all of said houses were built and used in accordance with the covenants and restrictions contained in the Parker deed supra. It does not appear from the evidence that buildings of any kind were ever constructed in said block 4804, other than single private dwelling houses.

Plaintiffs offered in evidence a copy of the plans for the construction of the proposed building of defendant Hess, which is marked Exhibit C, and, in order to avoid repetition, will be considered in the opinion with such matters as may be deemed of importance.

On April 7, 1919, the court below entered a decree in favor of defendants against all of the plaintiffs and dismissed the bill of latter. Plaintiffs, in due time, filed their motion for a new trial, which was overruled, and the cause duly appealed by them to this court.

S. T. G. Smith, of St. Louis, for appellants. Frank X. Heimenz and H. A. & C. Hamilton, of St. Louis, for respondents.

BAILEY, C. (after stating the facts as above).

1. upon the issuing of a temporary restraining order by the trial court in this case, plaintiffs were required to, and did, give a $5,000 injunction bond. On November 29, 1916, the restraining order aforesaid said was dissolved by the court, and the temporary injunction denied. On December 2 1916, defendants tiled herein a motion to assess the damages on the bond aforesaid The restrictions in the deed to defendant Hess terminated on December 31, 1920 While this court could not issue, or direct the lower court to issue, a restraining order enjoining defendants from constructing said building on block 4864 aforesaid, by reason of the termination of said restrictions, yet as plaintiffs have incurred liability on said bond for damages, and have become responsible for the costs of this litigation, should the judgment below be affirmed, or the appeal dismissed, they, as well as the public, still have an interest in the result of the litigation, which requires at our hands an investigation of the merits. Civic League v. City of St. Louis, 223 S. W. loc. cit. 892. 893, and cases cited; Stegmann v. Weeke 279 Mo. 131, 214 S. W. loc. cit. 135, 136; State ex rel. Bayha v. Philips, 97 Mo. 331, 10 S. W. 855, 3 L. R. A. 476; Long v. Charles A. Kaufman Co., 129 La. 430, 56 South. 357. Froemke et al. v. Parker et al., 39 N. D. 628, 169 N. W. 80; Peters v. Fisher, 50 Mich. 331 (15 N. W. 496); Southern Pac. Co. v. Int. Com. commission, 219 U. S. 433, 31 Sup. Ct. 288. 55 L. Ed. 283; So. Pac. Term. Co. v. Int. Com. Commission, 219 U. S. 498, 31 Sup. Ct. 279, 55 L. Ed. 310; People ex rel. Spire v. General Committee of Republican Party, etc., 25 App. Div. 339, 49 N. Y. Supp. 723; Russell v. Crook County Court, 75 Or. 168, 145 Pac. 653, 146 Pac. 806.

(a) The appeal from the merits suspended action on the motion to assess damages until the case is disposed of here. Cohn v. Lehman, 93 Mo. 584, 6 S. W. 267; J. & W. Ry. Co. v. Railroad Co., 135 Mo. loc. cit. 554, 555, 37 S. W. 540; State ex rel. v. Gates, 143 Mo. loc. cit. 68, 44 S. W. 739; Reed v. Bright, 232 Mo. loc. cit. 415, 134 S. W. 653; Brown v. Simpson, 201 S. W. loc. cit. 899, 900.

2. It is contended by respondents that the covenants and restrictions aforesaid are in derogation of the right of unrestricted use of property, and should not be extended by implication, or to include anything not plainly prohibited. We are cited, in support of this contention, to Zinn v. Sidler, 268 Mo. 689, 187 S. W. 1172, L. R. A. 1917A, 455; Kitchen v. Hawley, 150 Mo. App. 503, 131 S. W. 142; Pank v. Eaton, 115 Mo. App. 176, 89 S. W. 586; and Hartman v. Wells, 257 Ill. 167, 100 N. E. 500, Ann. Cas. 1914A, 901. On the other hand, appellants contend that the courts should give effect to the plain intention of the parties imposing restrictions on land, and not seek ingenious subtleties of interpretation by which to avoid the same. In support of this contention we are cited to Zinn v. Sidler, 268 Mo. 680, 187 S. W. 1172, L. R. A. 1917A, 455; Reed v. Hazard, 187 Mo. App. 547, 174 S. W. 111; Noel v. Hill, 158 Mo. App. 426, 138 S. W. 364; Sanders v. Dixon, 114 Mo. App. 229, 89 S. W. 577. Keeping in mind the contention of both parties supra, is there anything in the foregoing covenants and restrictions which precludes the defendant from building an apartment on his lot, provided it is constructed as other dwelling houses were required to be built, under the covenants and restrictions aforesaid?

It...