Pank v. Eaton

• Decision Date: 14 November 1905
• Parties: PANK et al. v. EATON et al.
• Court: Missouri Court of Appeals

89 S.W. 586

115 Mo. App. 171.

PANK et al. v. EATON et al.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

DEEDS — BUILDING RESTRICTIONS — OPERATION.

The erection of a house or flat two stories high under a single roof, planned for separate occupancy by two families, one on each floor, with separate entrances, did not constitute a breach of a building restriction in a deed providing that not more than "one house" should be erected on each 40-foot frontage.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Marguerite Ella Pank and others against Edith S. Eaton and others. From a final judgment in favor of defendants on demurrer to the petition, plaintiffs appeal. Affirmed.

Hickman P. Rogers and Jones, Jones & Hocker, for appellants. C. H. Kern and F. W. Imseipen, for respondents.

GOODE, J.

The petition in this case is in the nature of a bill in equity, and the purpose is to enjoin the erection of a house on Bartmer avenue, in the city of St. Louis, on the ground that the house is prohibited by restrictive covenants. Final judgment was entered against the plaintiffs on a demurrer to the petition. The plaintiffs are the owners of other lots in the vicinity, claiming title under Mary C. Miller, the common source of title to all the lots in the affected district. Mary Miller subdivided the tract of land into lots 40 and 50 feet wide, and in the several conveyances executed by her inserted restrictions regarding the sort of buildings that might be erected on the lots and the use of them for business purposes. We gather from the petition that the ground is known as "Gamble's Second Subdivision of Rose Hill," and is in city block No. 3,812. The lot owned by the defendant Edith S. Eaton has a width of 40 feet on the south side of Bartmer avenue and a depth of 160 feet. The restrictive covenants in her deed are these: "The above conveyance is made by said grantors and accepted by said grantee, subject to the following conditions, which shall continue in force until July 1st, 1930, and said Edith S. Eaton, for herself, her heirs and assigns, is obligated to faithfully observe and perform these conditions: No dramshop, livery stable, blacksmith shop, stockyards, milk dairy, or any manufacturing establishment whatever, or any business or proceeding prohibited by law, shall be carried on on said premises, nor shall any dwelling house costing less than three thousand dollars ($3,000.00) be erected upon said premises, nor shall any erection be made within thirty feet (30 ft.) of the south line of Bartmer avenue, nor more than one house to be erected on each forty feet (40 ft.) frontage. It appears that the same covenants are contained in the deeds to the plaintiffs.

The infringement by the defendants is thus stated: "Plaintiffs further say that though, by the terms of said deed, defendant Eaton is forbidden to construct, upon the ground by her so acquired, more than one house, nevertheless, she and her agent, defendant Francis, wholly disregarding the rights of plaintiffs, and in violation and defiance of said restrictions are now intending and threatening to build and construct, and are at this time actually engaged in building and constructing, two houses upon her said 40-foot lot of ground, in this, that defendants are now engaged in erecting upon said ground a structure at a cost of about $6,500, which, if completed according to their intentions, will contain two apartments or places of residence, each apartment having its front door, back door, windows, basement, furnace, hallway, drawing-room, dining-room, living rooms, pantries, bathroom, closets, and kitchen separate and apart from the other apartment; that, while the said two apartments will be within the same four outer walls and under the same roof, they will be separated from each other by substantial perpendicular and horizontal partitions, so that each will be a complete place of residence in itself, the front door of one being No. 5728 Bartmer avenue, and of the other 5730 Bartmer avenue; that there will be no internal communication between said respective apartments, nor any part of either apartment in which the tenant of the other would have an interest in common, and which said structure would, if completed, form what is commonly known as `flats'; that though defendants had, when said property was acquired, actual and constructive notice of said...