Pierce v. Harper

• Decision Date: 22 December 1925
• Docket Number: 24644
• Parties: THOMAS M. PIERCE, Treasurer of Vandeventer Parks, et al. v. SARAH HARPER et al., Appellants
• Court: Missouri Supreme Court

278 S.W. 410

311 Mo. 301

THOMAS M. PIERCE, Treasurer of Vandeventer Parks, et al. v. SARAH HARPER et al., Appellants

No. 24644

Supreme Court of Missouri

December 22, 1925

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Affirmed.

S T. G. Smith for appellants.

(1) The provisions of the deed from Vandeventer et al. to Peck et al., trustees, do not prohibit the use of the property in Vandeventer Place as a boarding house. Bolin v. Tyrol Inv. Co., 273 Mo. 257; Kitchen v. Hawley, 150 Mo.App. 497; Morrison v. Darr, 201 S.W. 1147; Hurley v. Brown, 60 N.Y.S. 846; Gallon v Hussar, 172 A.D. 393; Biggs v. Sea Gate Assn., 211 N.Y. 482; Stone v. Pillsbury, 167 Mass. 332; Mayor v. Water Works Co., 152 Ala. 306; Clark v. Jammes, 87 Hun, 215. (2) A boarding house is not a "trade or business dangerous, noxious and offensive to the neighboring inhabitants." Kitchen v. Hawley, 150 Mo.App. 497; Gallon v. Hussar, 172 A.D. 393; Biggs v. Sea Gate Assn., 211 N.Y. 482; Paul v. House of St. Giles the Cripple, 154 N.Y.S. 96; Heaton v. Packer, 116 N.Y.S. 46; Moubray v. Improvement Co., 178 A.D. 737; Kitching v. Brown, 180 N.Y. 414; Carr v. Riley, 198 Mass. 70; Easterbrook v. Hebrew Asylum, 85 Conn. 289; Doe v. Bird, 6 Carr. & Payne R. 195; Tobey v. Moore, 130 Mass. 448; M. E. Church v. Cape May Coal Co., 67 A. 613.

T. M. Pierce and Samuel H. Liberman for respondents.

(1) The use or occupancy of No. 12 Vandeventer Place for any purpose other than that of a private residence violates the covenants and restrictions applicable to the premises. Koehler v. Rowland, 275 Mo. 573; Kenwood v. Hancock Inv. Co., 169 Mo.App. 715; Sanders v. Dixon, 114 Mo.App. 229; Morrison v. Hess, 231 S.W. 997; Peters v. Buckner, 232 S.W. 1024; Adams v. Cary, 226 S.W. 833; Milligan v. Balson, 264 S.W. (Mo. App.) 73; Barnett v. Vaughn Institute, 119 N.Y.S. 45, 197 N.Y. 541; Smith v. Graham, 147 N.Y.S. 773; Cromwell v. American Bible Society, 195 N.Y.S. 333; Neidlinger v. New York Assn. for Poor, 200 N.Y.S. 852; Paine v. Bergose Dev. Co., 198 N.Y.S. 311; Baumert v. Malkin, 235 N.Y. 115; Powers v. Radding, 225 Mass. 110; Harris v. Roraback, 137 Mich. 292; Rosenzweig v. Rose, 201 Mich. 681; Farley v. Finn, 197 N.W. 571. (2) The boarding house and lodging house conducted by the defendants on the premises No. 12 Vandeventer Place was a business, noxious and offensive to the neighboring inhabitants and a place of trade. Sayles v. Hall, 210 Mass. 281; Gannett v. Albree, 103 Mass. 372; Linwood Park Co. v. Van Dusen, 62 Ohio St. 183.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

This is a companion case to the cause entitled, Thomas M. Pierce et al. v. St. Louis Union Trust Company et al., ruled in accordance with opinion filed at this term of this court, and reported at page 262 of this report. Plaintiffs seek to enjoin defendants, Charles E. Bradley and Sarah Harper and David H. Harper, the owner and lessees, respectively, of Lots 9 and 11, known as No. 12 Vandeventer Place in the city of St. Louis, from using, or permitting to be used, said lots and premises or any part thereof, as a boarding or lodging house, or for any purpose other than a private dwelling house, and from permitting more than one proper family per lot to have egress and ingress from and to said premises into and from the private parks and places in Vandeventer Place, in accordance with certain restrictive covenants of record affecting Vandeventer Place and alleged to be applicable to defendants' premises. The pleadings upon which the cause was tried and submitted below follow, in form and substance, those upon which the St. Louis Union Trust Company case, supra, was tried and submitted, except that the petition herein charges, "that said defendants, Sarah Harper and David H. Harper [the lessees], by and with the consent and permission of defendant Bradley [the owner], are conducting and maintaining in and on said premises the business of providing and furnishing to a large number of persons, the exact number being unknown to plaintiffs, board and lodging for compensation; that said defendants, Sarah Harper and David H. Harper, have rented rooms in said premises to undesirable and disreputable persons, and have permitted said premises to be used for an unlawful purpose, to-wit, the manufacture and distillation of alcoholic beverages, in violation of the laws and statutes of the State of Missouri and of the United States; that said defendants, Sarah Harper and David H. Harper, by and with the consent and permission of said defendant Bradley, are permitting the lodgers and boarders aforesaid, though not members of one proper family, to have ingress and egress into and from the private parks and places in Vandeventer Place."

The answer is substantially the same as that filed in the companion case, with the additional allegations "that these defendants were at the time of the institution of this suit, and for a long time prior thereto, using the premises occupied by them for the purpose of carrying on therein a first-class boarding house; that said boarding house is conducted in a quiet, orderly manner, and that there are no outward signs of any kind by which any person could know to what uses said premises are being put; that the defendants live in said premises with their family, and use part of the same for their home; . . . defendants further state that said boarding house maintained by these defendants is kept clean and is conducted in an orderly manner, and there are no outward evidences [of the uses] to which said property is put." The reply is a general denial.

The decree nisi follows the prayer of the petition and perpetually enjoins and restrains the defendants, and each of them, "from using or permitting to be used the premises and lots upon which same are situated, or any part thereof, or the building or buildings thereon known and referred to as No. 12 Vandeventer Place, in the city of St. Louis, Missouri, as a boarding or lodging house, and from conducting and maintaining, or permitting to be conducted and maintained, said premises and building as a nuisance, and from using or permitting to be used said premises for a purpose other than a private dwelling house, and from permitting more than one proper family per lot to have egress and ingress from and to said premises, into and from the private parks and places in Vandeventer Place." Their motion for new trial having been overruled, defendants appeal to this court.

Plaintiff, Thomas M. Pierce, testified that, since the trial of the cause of Pierce et al. v. St. Louis Union Trust Company et al., supra, there had been no change in the conditions within Vandeventer Place and that it remained "in the same high state of excellence;" that his attention was directed to the premises occupied by defendants Harper by the fact that strange and suspicious looking people, men and women, were coming and going out of the house; that he made an investigation and was advised by Mrs. Harper that she was not running a boarding house; that subsequently he received information to the effect that she was engaged in that business on the premises; that the maintenance of a boarding house at No. 12 Vandeventer Place is offensive to him as an owner of property and resident of said district; that, from the appearance of the persons he had seen in and about the place, he had a feeling of insecurity and he had apprehension as to the safety and welfare of his children; "the whole feeling there was, it was a place that you would not want to live near, and people that you would not want to have around you."

A city police officer testified that he had received complaints about people going in and coming out of the back way of the aforesaid premises around five and six o'clock in the morning; that these persons were "suspicious looking and a couple of men answered descriptions of men that we had been looking for;" that, accompanied by another police officer, he raided the premises on January 13, 1922, and, in a room on the third floor of the house, "found a big vat of mash and a copper boiler formed into a still, and about seven gallons of so-called whiskey in jugs;" that the vat was filled with mashed corn; that defendant Mrs. Harper stated to witness that she did not know who occupied that room; that she had rented...