Noel v. Hill
| Decision Date | 06 June 1911 |
| Parties | HENRY M. NOEL et al., Respondents, v. ROLAND HILL, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted March 9, 1911
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
Judgment affirmed and cause remanded. (with directions).
Jeptha D. Howe and Alphonso Howe for appellant, Roland Hill.
(1) The covenants in the deeds in the case at bar are peculiarly of that character known as a plan for the improvement of residence neighborhoods, and are covenants running with the land. King v. Union Trust Co., 226 Mo. 351; Hisey v. Church, 130 Mo.App. 566. (2) Said building restrictions are invalid and void in that same are not imposed in conformity to a general uniform plan of improvement, and affect only a single block and only one side of the street thereof. Coglin v. Barker, 46 Mo.App 54; Beal v. Cass, 138 Mass. 138; Ladd v Boston, 151 Mass. 588, 68 Central Law Jour. 246. (3) The court erred in not holding that the covenants contained in said deed restricting the use of said property are now invalid and void for the reason that the neighborhood has so changed as to render it apparent that the objects intended to be accomplished by such building restrictions have been defeated, and that it would now be inequitable, oppressive and unjust to the owner to enforce such restrictions. Coglin v. Barker, 46 Mo.App. 54; 68 Central Law Journal, 249; Scharer v. Pantler, 127 Mo.App. 433; Am. U. Assn. v. Minot, 185 Mass. 589; Jackson v. Stephenson, 156 Mass. 496; Evans v. Foss, 194 Mass. 513; Trustees v. Thacher, 87 N.Y. 325; Muzzaretti v. Hulshizer, 163 Pa. 446; Columbia College v. Thacher, 87 N.Y. 311; Amerman v. Dean, 132 N.Y. 355; Muzzaretti v. Hulshizer, 163 Pa. 446. (4) The court erred in not holding that the plaintiffs were not entitled to the relief asked for by them, for the reason that the billboards do not violate the said restrictions, and for the further reason that if they did plaintiffs are estopped to complain, because of the great length of time which said billboards had been maintained upon said lot with their knowledge and acquiescence. 5 Am. and Eng. Ency. Law (2 Ed.), 15-16; Knight v. Simmonds, 2 Ch. 294; Roper v. Williams, I. T. & R. 18; Patching v. Dubbins, Kay 1, 23 End. L. & Eq. 609; German v. Chapman, 7 Ch. Div. 271; Linzee v. Mixer, 101 Mass. 512; Payson v. Burnham, 141 Mass. 547; Jackson v. Stevenson, 156 Mass. 502; Leonard v. Hotel Majestic Co., 17 Misc. 229; Flint v. Charman, 6 N. Y. App. 121; Ware v. Smith, 156 Mass. 186; Lattimer v. Livermore, 72 N.Y. 174. The plaintiffs claim that billboards are "business," within the meaning of the restrictions. Be that as it may, it is a well settled rule of law that everything not excluded by special terms is not excluded at all. An "apartment house," constructed for residence purposes only, is not a breach of a condition in a deed against using the property, except for "residence purposes." McMurty v. Phillips Ins. Co., 103 Ky. 308; Ruth v. Jung, 79 N. Y. (App.Div.) 1; Halt v. Fleshman, 75 N. Y. (App. Deo.) 593; Kitching v. Brown, 180 N.Y. 414. (5) Said building restrictions are invalid and void in that they are perpetual and constitute a perpetual charge against said realty and are against public policy and in restraint of alienation, and confiscatory, and the court erred in not so holding. Toby v. Moore, 130 Mass. 448; Lewis on Perpetuities, 387, etc.; Sharer v. Pantler, 127 Mo.App. 433; Saunders v. Dixon, 114 Mo.App. 229; 4 Kent's Com. 131; 1 Washburn Real Property, 317; Sonn v. Heilbury, 56 N.Y.S. 341; Hutchison v. Ulrich, 145 Ill. 336; McMurty v. Phillips, 103 Ky. 308; Postal Co. v. Western Co., 155 Ill. 347; Livingston v. Stickles, 7 Hill 255; Crusoe v. Bugby, 2 W. Bl. 776; Eckhart v. Irons, 128 Ill. 582; Hutchinson v. Ulrich, 145 Ill. 336; Eckhart v. Irons, 128 Ill. 582; 1 Devin on Deeds, 848. Building restrictions for the most part contain conditions or restrictions which affect either the person of the owner, or relate to the character of the use and occupation of the premises. In our case, they are attempted to be imposed solely for the benefit of a general plan or scheme of improvement, etc. Columbia College v. Thacher, 87 N.Y. 311; Keates v. Lyon, L. R. A. Ch. 218; Peek v. Matthews, L. R. 3 Eq. 517; Sayers v. Collyer, L. R. 24 Ch. Div. 180; Roper v. Williams, Turn. & R. 18; Page v. Murray, 46 N.J.Eq. 325; Duncan v. Railroad, 85 Ky. 525, Jewell v. Lee, 14 Allen, 145, 92 Am. Dec. 744; Dana v. Wentworth, 111 Mass. 291. And whether they be personal to the grantor or be limited to a period less than "forever" depends on the intention of the parties, as expressed in the written instrument. Clark v. Martin, 49 Pa. 297; Muzzaretti v. Hulshizer, 163 Pa. 446; Bald Eagle Valley Co. v. Railroad, 171 Pa. 284, 29 L. R. A. 423; Keeler v. Taylor, 53 Pa. 467; Beard v. Dennis, 6 Ind. 200; Crawford v. Wick, 180 Ohio St. 190. (6) The decree entered in this case is erroneous in that appellant is "perpetually enjoined." Semple v. Schwartz, 130 Mo.App. 65.
Virgil Rule for respondents.
(1) (a) The size of the tract affected by the restrictions has no bearing on the question as to whether there has been designed a "general uniform plan of improvement." Meriwether v. Joy, 85 Mo.App. 636; Sharer v. Pantler, 127 Mo.App. 434; Improvement Co. v. Tower, 158 Mo. 291; Landell v. Hamilton, 175 Pa. St. 327. (b) The restrictions which appellant has sought to nullify conform to a general uniform plan of improvement, designed and adopted to render the Welles Subdivision, a high-grade residence tract. As such, so long as no abandonment of such plan is shown by the owners and occupants of such tract, such restrictions are valid and binding, regardless of the fact that business establishments may have approached close to the tract on adjacent unrestricted territory or, according to some authorities, actually invaded it. Coughlin v. Baker, 46 Mo.App. 79; Mulligan v. Jordan, 50 N.J.Eq. 363; Semple v. Schwarz, 130 Mo.App. 73. (2) If appellant's contention that the character of the neighborhood surrounding the Welles Subdivision has changed from a high class residence district to one of a purely business character, were true, yet abandonment of the restriction herein sought to be enforced could not be predicated on this fact alone. Abandonment must be shown as well by the acts of the individual owners of the restricted property. Such owners cannot be bound nor is the enforceability of the restrictions affected by the acts of owners of adjacent plots of ground not covered by the restrictions nor forming any integral part of the restricted area. Rowland v. Miller, 139 N.Y. 93; Coughlin v. Barker, 46 Mo.App. 79; Sparr v. Cape, 143 Mo.App. 114 and cases cited; Lattimer v. Silvermore, 72 Mo. 174; Hisey v. Presbyterian Church, 130 Mo.App. 556; Hall v. Wester, 7 Mo.App. 56; Sanders v. Dixon, 114 Mo.App. 246; Safe Dep. Co. v. Kennett, 101 Mo.App. 390; Spahr v. Cape, 143 Mo.App. 124; Scharer v. Pantler, 127 Mo. 475; Brown v. Huber, 80 Oh. St. 183; Landell v. Hamilton, 175 Pa. 327. (3) The maintenance of billboards on the restricted lots constitutes a trade or business within the meaning of the restrictions. Beickler v. Gienther, 96 N.W. 896; Goddard v. Chaffee, 2 Allen 395; Hdw. Co. v. Mfg. Co., 86 Tex. 153; Abel v. State, 90 Ala. 633; Netterville v. Barber, 52 Miss. 171; Semple v. Schwarz, 130 Mo.App. 77. (4) The restrictions are not a perpetual charge against the realty; are not against public policy nor in restraint of alienation within the legal definition of those terms, nor are they confiscatory. Stevens v. Realty Co., 173 Mo. 511. (5) The decree does not violate the rule against perpetuities, nor did the court err in granting a permanent injunction. See authorities cited point 2, supra; Stevens v. Realty Co., supra. If the decree below is erroneous in that it fails to conform to the provisions of the restrictive covenant it may be reformed in this court without remanding the cause. Semple v. Schwarz, 130 Mo.App. 65.
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...
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