Reed v. Hazard
| Decision Date | 01 March 1915 |
| Citation | 174 S.W. 111,187 Mo.App. 547 |
| Parties | FRANKLIN P. REED et al., Respondents, v. LUCINDA HAZARD et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thos. J. Seehorn, Judge.
Judgment affirmed.
Moore & Creel for appellants.
(1) The law favors the free and untrammelled use of real property. Restrictions in conveyances of the fee are regarded unfavorably and therefore strictly construed. Scharer v Pantler, 127 Mo.App. 437; Kitching v. Brown, 180 N.Y.S. 341. (2) All doubts as to their construction being resolved in favor of the grantee. Kitchen v Hawley, 150 Mo.App. 497; Stone v. Pillsburg, 167 Mass. 337; Hutchinson et al. v. Urich et al., 145 Ill. 336. (3) Where one enters into detail, specifying certain matters, as interdictment, it is to be presumed if nothing to the contrary appears from the context of the instrument, that buildings of a nature not thus excluded are intended as a proper use of the property. Kitchen v. Hawley, 150 Mo.App. 497. (4) The restrictions will not be extended by implication or construction. Peck v. Hartshorn, 189 Mass. 110; Penk v. Eaton, 115 Mo.App. 171. (5) In construing a deed, the same meaning should be given to every clause, word and expression. Jacoby v. Nichols et al., 62 S.W. 734; Proctor v. Railroad, 96 Maine, 458.
Wm. Moore for respondents.
(1) Courts are disposed to uphold building restrictions according to their meaning and according to the intention of the parties in the light of surrounding circumstances. Sanders v. Dixon, 114 Mo.App. 229, 253; Godfrey v. Hampton, 148 Mo.App. 157; Spahr v. Cape, 143 Mo.App. 114; Miller v. Klein, 177 Mo.App. 557. (2) William Moore, plaintiff, is bound by the same building restrictions as defendants and has an equitable easement in their tract and may enjoin them from violating the restrictions. Miller v. Klein, 177 Mo.App. 557. (3) Covenants in the nature of building restrictions enure to the benefit of neighbors where there is a general plan of restriction. Meriwether v. Joy, 85 Mo.App. 639; Miller v. Klein, 177 Mo.App. 557.
--This is a proceeding by injunction to restrain defendants from erecting on their real estate one or more small, one story business buildings, commonly known as store buildings. The injunction was granted, and defendants appealed.
The ground in controversy is in what is known as a residence restricted district of Kansas City, plaintiffs residing on adjoining property. The tract is described as follows: "Beginning at the Northwest corner of 39th and Mercer streets in Kansas City; thence west along the north line of 39th street eighty-three feet and two inches; thence north paralleled with Mercer street one hundred and thirty-eight feet; thence east paralleled with 39th street eighty-three feet and two inches to the west line of Mercer street; thence south along the west line of Mercer street one hundred and thirty-eight feet to the place of beginning." Defendants became the owners of the ground through a chain of title, duly recorded containing the following restriction:
"And on the east eighty-three (83) feet two (2) inches of the above described premises there are not to be more than two dwellings erected on the south front and to cost not less than $ 2500 each, but other buildings may be erected on the east front of said last described premises."
Notwithstanding one of defendants testified that they bought with their "eyes wide open" as to these restrictions, they began excavations for several one-story store buildings, facing on 39th street. They endeavor to maintain their right to do so by a construction we think unwarranted and in the face of what was evidently meant by the restriction. They insist that they are at liberty to build any character of building, fronting south on 39th street, but if they do build residences, there shall not be more than two; and neither shall cost less than $ 2500. We think the words that there are not to be more than two dwellings fronting on 39th street mean that those are the character of buildings permitted to be built and that there must not be more than two of them. That it was the intention to exclude any other class of buildings from the south front, is made manifest by the fact that other classes are provided for on the east front of the tract.
The general subject of building restrictions on city property is discussed in a series of decisions by the St. Louis Court of Appeals. [Miller v. Klein, 177 Mo.App. 557, 160 S.W. 562; Spahr v. Cape, 143 Mo.App. 114, 122 S.W. 379; Kitchen v. Hawley, 150 Mo.App. 497, 131 S.W. 142; Godfrey v....
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