Proetz v. Central Dist. of C. & M. Alliance

• Decision Date: 18 December 1945
• Docket Number: No. 26825.,26825.
• Citation: 191 S.W.2d 273
• Court: Missouri Court of Appeals
• Parties: PROETZ et al. v. CENTRAL DIST. OF CHRISTIAN & MISSIONARY ALLIANCE et al.

191 S.W.2d 273

PROETZ et al. v. CENTRAL DIST. OF CHRISTIAN & MISSIONARY ALLIANCE et al.

No. 26825.

St. Louis Court of Appeals. Missouri.

December 18, 1945.

Appeal from St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Action by Arthur W. Proetz and others against Central District of the Christian and Missionary Alliance and others for an injunction enjoining defendants from using certain building as a church or for church purposes. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

Grimm & Mueller, of St. Louis, for appellants.

Mattingly, Berthold, Jones & Richards, of St. Louis, for respondents.

SUTTON, Commissioner.

This is an injunction suit commenced in the Circuit Court of the City of St. Louis on May 5, 1943. The trial resulted in a judgment in favor of plaintiffs whereby the defendants are perpetually enjoined and restrained from using the building known as 5035 Lindell Boulevard in the City of St. Louis as a church or for church purposes and from conducting and maintaining there a church or religious services or for any purpose other than that of a private residence.

Defendants appeal.

No witnesses were produced at the trial. It appears that the evidence was agreed upon by the parties, which as so agreed upon, in so far as material to the decision of the issues presented here, is substantially as follows:

Plaintiffs' Evidence in Chief

Plaintiffs Arthur W. Proetz and Erma Perham Proetz, his wife, are the owners in fee of lot 6, plaintiff Edward Mallinckrodt is the owner in fee of lots 7 and 8, and defendant Central District of the Christian and Missionary Alliance, which is an incorporated church, is the owner in fee of lot 4, all the said described property being in city block 4901 of the City of St. Louis. The said lot 4 is improved with a fine residence, known as 5035 Lindell Boulevard, and is now being used regularly as a church and for church purposes in connection with the doctrines and tenets of the said church corporation. Over the entrance to said residence is a large sign "C. M.A." illuminated at night.

The said church corporation acquired said lot 4 on February 9, 1943, by virtue of a quitclaim deed from defendants Richard Harvey and Dorothy E. Harvey, his wife, the said Harveys having acquired the property on September 19, 1942, by a warranty deed from James Byrnes. Richard Harvey is a pastor in the said church corporation and since the time of his acquisition of the property from James Byrnes to the present time has been conducting regularly religious and church services in said property. Services are conducted on Wednesday evenings and on Sunday mornings and evenings with a congregation of from sixty to a hundred persons in attendance.

All of said lots owned by plaintiffs and defendants are a part of a parcel of ground conveyed by William D. Griswold and wife to the Forest Park Improvement Association by deed dated May 11, 1887, which parcel of land comprises all of what is now Portland Place, Westmoreland Place, and twenty-six lots fronting on the north side of Lindell Boulevard, formerly known as Park Road, located between Kingshighway Boulevard and Union Boulevard.

The Forest Park Improvement Association, by deeds to the trustees of Portland Place and Westmoreland Place and to the various individual lot owners of the twenty-six lots fronting on the north side of Lindell Boulevard, formerly known as Park Road, and located between Kingshighway and Union Boulevard, set up a number of identical restrictions and among others, in all of said deeds, section 4 which reads as follows:

"The front line of said lot or parcel of land hereby conveyed is the north line of said Park Road. And the building line of said lot or parcel of land shall be forty feet from and parallel with said north line of said Park Road, and neither the party of the second part nor his heirs, nor his assigns shall ever erect any building on said lot or parcel of land hereby conveyed within forty feet from the front line of said lot or parcel of land; * * * or build more than one house on said lot or parcel of land within distance of one hundred feet from said Park Road, or within distance of forty feet from Kingshighway * * *. And neither the said party of the second part nor his heirs nor his assigns shall ever use or permit any house erected on said lot or parcel of land to be used either directly or indirectly for business of any description or for any purpose other than that of exclusive private residence; * * *."

Defendants' Evidence in Chief

The property in question, known as 5035 Lindell Boulevard, is situated on the north side of Lindell Boulevard, facing Forest Park, and is quite close to the intersection of Kingshighway and Lindell Boulevard. The property is improved by a very old building at one time occupied by the Boyle family and is known generally as the Boyle home. After the vacation of the property by the Boyles, it lay idle and vacant, became run-down and in dire need of repairs.

Immediately upon the purchase of the property by the Harveys, they and their minor children entered into possession of the property, making it their place of residence. They still live in the property, occupying the larger part of the building as their place of residence, some surplus rooms having been closed.

Defendant Richard Harvey is a clergyman and is engaged in various religious activities, including that of conducting in the property in which he lives religious meetings on Wednesdays and Sundays attended by small groups of people.

The conduct and deportment of the Harveys, the members of their family and the persons coming on the property as their guests or as participants in the religious services are and has been orderly and quiet and has never brought forth the slightest objection from a neighbor or resident in the community.

Kingshighway Boulevard and Lindell Boulevard, in 1887, when the Forest Park Addition was laid out and the restrictions described in plaintiffs' petition were adopted, were not much more than rural roads situated in a sparsely populated community. The area was scarcely a part of metropolitan St. Louis and was really a type of suburb to the city. At the present time, however, and for the last ten or fifteen years, the community has been a heavily populated one, rapidly giving way to the western trend and movement of the city. What was formerly an exclusive residential section has been encroached upon by apartments, hotels, garages, night clubs and many other types of business. This movement has reached Kingshighway and in many areas has gone far beyond Kingshighway. At Lindell Boulevard at its intersection with Kingshighway, the movement is definitely apparent. One of the chief, if not the most involved, traffic direction systems has been erected at the intersection of these two arterial highways. Numerous automobiles, trucks and buses pass hourly in each direction over Lindell and over Kingshighway.

The St. Louis Public Service Company has established a bus stop for the taking on and letting off of passengers quite close to the property occupied by the defendants. At this point hundreds of persons board and alight from large motor buses which are routed over Lindell.

There are located within a few hundred feet of the property of defendants and in clear view of all persons on Lindell Boulevard numerous liquor bars, night clubs, hotels, and eating places. Close by are the Park Plaza Hotel, the Chase Hotel, and the Kingsway Hotel, with their glaring illumination and signs.

Lindell Boulevard, particularly on the north side and in front of the property of defendant, is utilized nightly by hundreds of patrons of the bars, the night clubs, and hotels in the vicinity for the parking of their automobiles.

Automobiles in large numbers are parked nightly on Lindell in front of the houses located in the vicinity of defendants' property. These cars are those of the patrons of the many bars, night clubs, and hotels in the immediate and adjoining neighborhoods.

There are three substantial structures, which are not residential in nature, situated in said city block 4901, which have been used for purposes other than as an exclusive private residence for a period of more than twenty-five years, to wit: A large two-story brick building on lots 1 and 2, the only structure on either of the lots, used for the storing of automobiles and other personal property; a large two-story brick building on lot 7, the only structure on the lot, used for storage purposes, and owned by plaintiff Mallinckrodt; and a large stone and rock building on lot 12, connected with a private residence on an adjoining lot, used for years as an...