Peters v. Buckner

Decision Date08 July 1921
Docket NumberNo. 22649.,No. 22650.,22649.,22650.
Citation232 S.W. 1024,288 Mo. 618
PartiesPETERS et al. v. BUCKNER, Judge, et al. STATE ex rel. MEADOW PARK LAND CO. v. MEADOW PARK LAND CO. v. BUCKNER, Judge.
CourtMissouri Supreme Court

the most elevated, commanding, and beautiful location in the entire addition, and indeed of the entire neighborhood. Each and every lot in that addition is impressed with a certain use, with an easement, or, more specifically, a negative easement, which was created and is evidenced by certain "restrictions and agreements," contained in the title deeds of each and every lot holder except those lots not yet sold, but now owned by the original owner, Meadow Park Land Company. That company is the common source of title, and it established and promulgated the plan and purpose of these restrictive covenants and agreed with all purchasers in the addition and owners "of adjacent land to embody the same covenants in the title to every lot in the addition, except a slight area, which is not material here, and both express and implied covenants and restrictions exist between it (the Meadow Park Land Company) and each and all the purchasers and grantees of it of lots in said addition, and also by an express contract between it and the owners of adjacent lands to the effect that the same covenants and restrictions herein set out shall be incorporated in the title and enforced as to each and every lot in said Meadow Park addition, whether they be owned by it, the Meadow Park Land Company, or its grantees. And as to this the express language of the answer of the Meadow Park Land Company in the said condemnation case, which allegations are set out in the petitions for these writs and are therefore admitted by the defendants in the case at bar by reason of their demurrers to the petitions for these writs, is to this effect:

"Defendant further says that on or about January, 1910, it entered into a written agreement with the owners of the 80-acre tract of land lying immediately south of and adjoining the 80-acre tract comprising Meadow Park addition, whereby it was mutually covenanted and agreed between them that each of said tracts should be restricted to residence uses by covenants and restrictions substantially like those set out in the petition for a term of 25 years from January 1, 1910; and this defendant (Meadow Park Land Company) says that at all times since the platting of said Meadow Park addition it has represented and advertised to all purchasers and to the public in general that all of the lots and tracts of land in said Meadow Park addition will be used and devoted to residence purposes, and will be conveyed and held subject to the covenants and restrictions set out in the petition (the condemnation petition) herein.

"Defendant says that by reason of the character the property, comprising the lands in Meadow Park addition, has acquired by reason of the fixed purpose and policy of the owners of that and surrounding lands to devote it to residential uses in accordance with the covenants and restrictions herein referred to, it has acquired a great and substantial value, and that such value will be greatly depreciated and lessened by the taking and appropriation and use of blocks 3 and 4 in said addition as and for a site for a schoolhouse in accordance with the petition herein."

The exact terms of the restrictive covenants are as here set out; and there is no dispute about them, for they are recited in the condemnation petition, and in each of the petitions for these writs, and consequently are admitted by all parties, and they are embodied in each and every deed from the Meadow Park Land Company to its grantees, the Peters, as well as every other lot owning defendant in the condemnation case, immediately following the granting clause in such deeds, and they are as follows:

"Restrictions and Agreements.

"Subject, however, to the following restrictions and agreements: And the second party, grantee herein, for himself and for all persons claiming under him, her or them agrees as follows, viz.:

"First. That no building shall be erected on said lot other than a residence and usual appurtenant outbuilding for use in connection with said residence, and that said lot shall be used only for residence purposes; further, that no flat building or apartment building shall be erected upon said property. Said lot shall not be sold to or occupied by negroes.

"Second. That only one residence shall be erected or rebuilt in case of destruction and maintained on said lot; that no residence shall be erected thereon which shall cost and be reasonably worth less than $3,500.

"Third. That at no point shall any part of such residence building (inclusive of porches) be nearer than 25 feet of the front street line of said lot, and no stable, barn, or other outbuildings shall be erected on said lot elsewhere than on the rear thereof, and, if a corner lot,, nearest to the side line farthest from the lateral street.

"Fourth. These restrictions and agreements shall be binding and effective for a term of 25 years from January 1, 1910, upon the grantee or grantees herein and all persons claiming under such grantee or grantees, and are made for the use and benefit of the grantor herein and its past or future grantees of other lands in said Meadow Park addition and all persons claiming under them or any of them, and, in case of breach or threatened breach of any restriction or agreement contained, the grantor herein, or any person or persons holding or owning any interest in any other lands in said addition, shall be entitled from time to time to sue for and obtain an injunction prohibitive and mandatory or either as may be sued for, to prevent such breach or to enforce the performance and observance of such restrictions and agreements and each of them and to compel and restrict the use of such premises as herein agreed to be restricted and to abate everything thereon or use thereof, contrary hereto in addition to ordinary legal action or actions for damages."

By virtue of the established residential character of this entire addition and neighborhood brought about and secured by these obligatory covenants all the lots in the addition acquired an enhanced and stable value, and the location and carrying on of a great public school on the proposed site will entirely obliterate that character and destroy the value of adjacent lots as high-class residence property, to the great damage of these plaintiffs.

It is alleged in these petitions, and is therefore admitted under the demurrers, thus:

"And these plaintiffs say that the taking and appropriation of the schoolhouse site and the use thereof for that purpose will violate the agreements and restrictive covenants between these plaintiffs and the Meadow Park Land Company and other persons parties to the said condemnation ilia who now own the building lots within the said site as grantees of the said Meadow Park Land Company hereinbefore recited, and will deprive these plaintiffs of their said right, title, interest, and easements in and to the said lots and each of them comprised within the schoolhouse site, and that thereby the plaintiffs' said lot 7 in block 5 will be depreciated in value, and they will be thereby damaged in a large sum, to wit, the sum of $750."

And the damages in this respect of the Meadow Park Land Company are alleged in the petition for mandamus, and the demurrer admits the truth of that allegation, to be $21,000.

Counsel for plaintiffs correctly state the legal question involved in this language: The material and controlling proposition in the condemnation case therefore is substantially this: May the Peterses (for instance), who own a 50 foot lot across the street from the proposed schoolhouse site, and which fronts the proposed site, recover in the condemnation proceeding the amount that their lot is depreciated in value and...

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