Noel v. Hill

• Citation: 158 Mo. App. 426,138 S.W. 364
• Parties: NOEL et al. v. HILL et al.
• Decision Date: 06 June 1911
• Court: Missouri Court of Appeals

138 S.W. 364

158 Mo. App. 426

NOEL et al. v. HILL et al.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

1. DEEDS (§ 171*) — BUILDING RESTRICTIONS.

While the law favors the free use of real estate, proper building restrictions on the use of property of a character which the law permits to be attached to land, so as to restrict the use of one parcel in favor of another, are valid and enforceable on equitable grounds.

2. PERPETUITIES (§ 4*) — BUILDING RESTRICTIONS — VALIDITY.

A deed of a lot, which recognizes that the grantor has laid out a block into lots subject to building restrictions, and which stipulates that after 25 years the owners of the greater part of the frontage on a street may modify or repeal the restrictions, is not objectionable as creating a perpetuity, which is created only when there are no persons in being who can convey an absolute fee in possession discharged of a future use or estate; there being nothing in the deed restricting the owners of all the lots from at any time by consent removing the restrictions.

3. DEEDS (§ 170*) — RESTRICTIONS — VALIDITY.

A grantor of land may restrict its use in a particular way, provided the restrictions are not against public policy.

4. DEEDS (§ 171*) — BUILDING RESTRICTIONS — VALIDITY.

An owner of a city block may divide the same into lots, and impose on them building restrictions in conformity to a uniform plan of improvement adapted for dwelling houses, though the property on the opposite sides of the streets is not subject to such restrictions.

5. DEEDS (§ 175*) — BUILDING RESTRICTIONS — ENFORCEMENT — WAIVER.

An owner of a city block divided it into lots and imposed on them building restrictions in conformity to a uniform plan of improvement adapted for dwelling houses. The block, except two or three vacant lots, had been improved in conformity to the general plan. No attempt had been made by the owner or the purchasers of the lots other than by the purchaser of a vacant lot to change or abandon the general plan. Held not to show a failure of the restrictions so as to render them inoperative.

6. DEEDS (§ 175*) — BUILDING RESTRICTIONS — ANNULMENT.

The mere fact that lots in a block subject to building restrictions, specified in the deeds of the lots, have become more valuable for business than for residence purposes as limited by the restrictions, does not of itself justify equity in annulling the restrictions.

7. DEEDS (§ 175*) — BUILDING RESTRICTIONS — ANNULMENT.

Where a city block was divided by the owner thereof into lots subject to building restrictions, created in the deeds of the lots, and the block, save two or three vacant lots, was improved in conformity to the restrictions, the mere presence of street railway tracks on one of the adjacent streets did not justify equity in annulling the restrictions and permitting the block, confined by the restrictions to residences, to be turned into business property.

8. DEEDS (§ 175) — BUILDING RESTRICTIONS — MODIFICATIONS — CONSENT OF OWNERS.

Neither the grantor of a block divided into lots and subject to building restrictions, nor the owners of lots therein, may change the building restrictions without the consent of all purchasing under covenants providing for such restrictions.

9. DEEDS (§ 172*) — BUILDING RESTRICTIONS — VIOLATIONS.

The erection of bill boards by an advertising company for a consideration paid by the owner, followed by the sale or letting out of space on the bill boards for hire, is carrying on business on the land and using it for business purposes in violation of a building restriction prohibiting the use of the land for business.

10. DEEDS (§ 171*) — BUILDING RESTRICTIONS.

That building restrictions are hurtful to business and restrict the business area of the city will not prevent their enforcement.

11. APPEAL AND ERROR (§ 1152*) — DISPOSITION OF CASE ON APPEAL — REMAND TO TRIAL COURT FOR CORRECTION OF ERRONEOUS JUDGMENT.

Building restrictions being subject to modification or repeal after a specified date by the owners of the greater part of the frontage on a street, a perpetual injunction restraining a violation of the restrictions, if erroneous, does not call for a modificatin of the injunction in the appellate court, but that court will remand the case with directions to amend the injunction so as to include the limitation of the restrictions.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by Henry M. Noel and others against Roland Hill and others. From a judgment for plaintiffs, defendant named appeals. Affirmed.

Jeptha D. Howe and Alphonso Howe, for appellant. Virgil Rule, for respondents.

REYNOLDS, P. J.

This is a suit wherein an injunction is sought to restrain defendants from the violation of certain building restrictions, to which lots in city block 3894, that block fronting on Lindell and Maryland avenues, are subject. It was admitted at the trial that every conveyance of the lots contained in this block and in which is situate lot 33, fronting on Maryland avenue, the lot involved here, contained similar provisions to those contained in the deed which was attached as an exhibit to the answer of defendants, that deed being in evidence. It is recited in this deed, that the grantor has laid out this block 3894 into lots, designating the block as Welles' Subdivision, with a view of making the subdivision suitable and desirable for first-class residences, and has, in order that said subdivision may remain a residence district exclusively, imposed upon each lot in the subdivision, for the benefit of every other lot therein, certain conditions and restrictions in the use thereof, the easement thus created and made appurtenant to each lot being an inducement to the grantee to make the purchase evidenced by the deed. The restrictions imposed on the Maryland avenue lots are, first, that the building line on Maryland avenue shall be thirty feet south of the south line of Maryland avenue and that no building or any part or portion thereof, nor any projection thereof shall at any time be erected or placed upon the space between the building line and Maryland avenue. Second, but one residence building shall be erected upon the lot, such building never to be used or occupied for any purpose except for that of a private residence, "nor shall said lot or any portion thereof ever be used for trade, manufactures, or business of any kind whatever." The third permits the erection of stables, etc., necessary to the use of the building. The fourth prescribes the minimum cost of a building erected on a lot and provides that no fence or inclosure of any kind shall be put upon the lines of the lot between Maryland avenue and the building line. It is further provided in this fourth stipulation that after 25 years from the date of the deed, the owners of a majority or greater part of the frontage on Maryland avenue within the block may, by written consent, signed and acknowledged by them, alter, modify or repeal these restrictions so far as concerns the lots fronting on Maryland avenue in that block, and it is stipulated that the grantee accepts the conveyance, "subject to the easements, restrictions and conditions above set forth, and for himself, his heirs and assigns covenants to and with the party of the first part, his heirs and assigns, that the said party of the second part will and that his heirs and assigns shall forever faithfully observe and perform said several restrictions and conditions, and each of them unless modified or repealed as above stated." It is further provided that if the grantee or any persons claiming under him, shall attempt to violate or omit to perform or observe any of the foregoing restrictions or conditions, it shall be lawful for any person owning a lot fronting on Maryland avenue in that block, which is subject to these same restrictions and conditions in respect to which default is made, to institute and prosecute appropriate proceedings at law or in equity for the wrong done or attempted, and the grantor covenants for himself, his heirs and assigns, that he will not at any time thereafter convey or otherwise dispose of any lot fronting on Maryland avenue in that block, except upon and subject to the foregoing restrictions and conditions, the grantor further covenanting with the grantee, his heirs and assigns that he will not convey or otherwise dispose of any lot in that block without restricting the building to be erected thereon to the building line as shown in the plat, save as to steps and platforms mentioned, which are not to extend to exceed 10 feet over the building line; further covenanting forever to warrant and defend the title subject to the foregoing reservations, easements, restrictions, covenants and conditions. Lot 33 is the northwest corner lot of the block or subdivision.

The petition upon which the case was tried alleges that defendants Roland Hill, St. Louis Bill Posting Company and St. Louis Gunning Advertising Company erected or caused to be erected and are now maintaining on this lot 33, a large and unsightly wooden structure, extending from near the northeast corner of the lot, southwestwardly to near the southwest corner thereof, the structure being about 150 feet long, 18 feet high and constructed of wooden planks fastened to wooden posts driven into the ground on the lot, and that defendants are employing the structure for advertising purposes, the exterior for signs and advertisements of various businesses and callings painted and posted thereon, and the lot thereby used and employed for the purpose of carrying on the business of renting space upon the exterior of this wooden structure to persons and corporations for advertising their business and calling, for hire and rent charged, demanded and received by defendants, the companies defendant being engaged in the advertising and bill posting business, and that the exterior of the structure is now covered by large...