Rombauer v. Christian Church

• Decision Date: 12 June 1931
• Docket Number: No. 28486.,28486.
• Citation: 40 S.W.2d 545
• Parties: LINNIA ROMBAUER ET AL., Appellants, v. COMPTON HEIGHTS CHRISTIAN CHURCH ET AL.
• Court: Missouri Supreme Court

40 S.W.2d 545

LINNIA ROMBAUER ET AL., Appellants, v. COMPTON HEIGHTS CHRISTIAN CHURCH ET AL.

No. 28486.

Supreme Court of Missouri.

Division One, June 12, 1931.

Appeal from Circuit Court of City of St. Louis. — Hon. Moses Hartmann, Judge.

REVERSED AND REMANDED (with directions).

Edgar R. Rombauer and Frank X. Hiemenz for appellants.

(1) The real estate of appellants and respondents was by the agreement of their predecessors in title restricted as to the use and improvement thereof in the manner and form as therein set forth, resulting in granting to each of appellants and respondents an easement in the property of the other as to the user and improvement of each other's property, a violation of which can be enjoined in equity. The improvements and uses were restricted to private residences. Ward v. Manor Corp., 188 Wis. 534; Allen v. Ins. Co., 143 N.E. (Mass.) 499; Harvey v. Rubin, 219 Mich. 307; Hall v. Webster, 7 Mo. App. 56; Sanders v. Dixon, 114 Mo. App. 229; Thompson v. Langan, 172 Mo. App. 64. (2) The rule against perpetuities does not apply to restrictive covenants governing the use, occupancy and improvement of real estate. The covenants may be perpetual, without violating the rule of perpetuity. Stevens v. Realty Co., 173 Mo. 511; Gray, Rule Against Perpetuities, sec. 280; Tobey v. Moore, 130 Mass. 448; Noel v. Hill, 158 Mo. App. 443. (3) A change in the character of surrounding property other than the property restricted, does not affect restrictions properly imposed. Restrictive covenants can be ended by unanimous consent of the owners of all property affected, or they may be abandoned or waived, but the circumstances or situation from which an abandonment or waiver can be implied must relate directly to the property restricted and not to surrounding unrestricted property, and then only in such degree as to render it inequitable and unconscionable for a court of equity to enforce the restrictive covenants without inflicting great damage and injury on the owners of the property sought to be restricted, without a resulting benefit to the property or the owner thereof seeking to enforce the restriction. Pierce v. Trust Co., 311 Mo. 262, 278 S.W. 398; Pierce v. Hooper, 311 Mo. 301, 278 S.W. 410; Allen v. Ins. Co., 143 N.E. (Mass.) 499; Thompson v. Langan, 172 Mo. App. 64; Berry, Restrictions on Use of Real Property, secs. 370 to 389, pp. 479 to 514; Noel v. Hill, 158 Mo. App. 426; Allen v. Bonding Co., 143 N.E. (Mass.) 499. (4) The fact that property surrounding the restricted property has changed in nature and character in any degree does not affect the validity of the restrictive covenants governing the restricted property, nor prevent the enforcement of the restrictive covenants. Pierce v. Trust Co., 311 Mo. 262; Pierce v. Hooper, 311 Mo. 301; Spohr v. Cope, 143 Mo. App. 114; Noel v. Hill, 158 Mo. App. 426. (5) The fact that real estate subject to the restrictive covenants is more suitable for business purposes than for the purposes limited by the restrictive covenants does not affect the restrictive covenants, nor prevent their enforcement. Allen v. Ins. Co., 143 N.E. (Mass.) 499; Spohr v. Cope, 143 Mo. App. 114; Noel v. Hill, 158 Mo. App. 426. (6) The fact that real estate subject to the restrictive covenants is of greater value freed of the restrictive covenants than with restrictive covenants in full force and effect, does not affect the restrictive covenants, nor prevent their enforcement. Spohr v. Cope, 143 Mo. App. 114; Noel v. Hill, 158 Mo. App. 426. (7) The owner of a lot subject to restrictive covenants cannot single out one restrictive covenant and agree to obey it, and in the same breath deny the validity of the remaining covenants; the question always is, is the property alleged to be subject to restrictive covenants actually subject thereto? One expressly admitting the validity of one covenant of an entire instrument containing that and other covenants admits the validity of all, and cannot bargain and agree with the court by agreeing to obey one in consideration of the removal of the other. Equity will not allow a party to blow hot and cold and divide an otherwise whole agreement into parts. The respondents in this case admit the validity of the building line on the south side of Flora Avenue and agree in improving their property to obey this building line, at the same time contending that their property is not subject to the other restrictions contained in the contract imposing the building line. (8) Slight violations of restrictive covenants, especially on the part of other owners of restricted property not directly involved in the pending suit, does not prevent the enforcement of the restrictive covenants and does not in any sense arise to the dignity of an abandonment or waiver. Wood v. Manor Corp., 188 Wis. 534; Allen v. Ins. Co., 143 N.E. (Mass.) 499; Thompson v. Langan, 172 Mo. App. 64.

Abbott, Fauntleroy, Cullen & Edwards for respondents.

(1) Lot 1 is not covered by the restrictions and is not a lot "fronting" on Flora Place. Howland v. Andrus (N.J.), 86 Atl. 391; Century Dictionary, title, "Front;" Standard Dictionary, title, "Front." (2) A restrictive covenant should not be enforced where any doubt exists. To doubt is to deny. Intention of parties as expressed in covenant and gathered from surrounding circumstances is controlling. Pierce v. Union Trust Co., 311 Mo. 286; Fortesque v. Carroll, 76 N.J. Eq. 583, Ann. Cas. 1912A, 79; Bolin v. Investment Co., 273 Mo. 262; Charlot v. Mercantile Corporation, 251 S.W. 423; Bolin v. Investment Co., 273 Mo. 257, 200 S.W. 1059, L.R.A. 1918-C 869. (3) The conditions affecting Flora Place have so changed since 1897 as to destroy the provisions attempting to create a high-class exclusive district, if such was the original effect of the restrictions. Koehler v. Rowland, 275 Mo. 573; Trustees of Columbia College v. Thatcher, 87 N.Y. 311; Hobson v. Cartwright, 93 Ky. 368; Los Angeles Assn. v. Muir, 136 Cal. 36; McClure v. Leaycraft, 183 N.Y. 36; Amerman v. Deane, 132 N.Y. 355; Batchelor v. Hinkle, 210 N.Y. 243; Page v. Murray, 46 N.J. Eq. 325; Orne v. Fridenberg, 143 Pa. St. 487; Jackson v. Stevenson, 156 Mass. 496; Kneip v. Schroeder, 255 Ill. 621; Star Brewery Co. v. Primas, 163 Ill. 642; Fortesque v. Carroll, 76 N.J. Eq. 583. (4) Where property is restricted to a high-class exclusive residential district, when the evidence shows that changes in the neighborhood have taken place to the extent defendants proved at the trial of this case, restrictions covering the property are at an end and testimony proving said facts is admissible. Koehler v. Rowland, 275 Mo. 573; Los Angeles Land Co. v. Muir, 136 Cal. 36; McClure v. Leaycraft, 183 N.Y. 36; Schwartz v. Duhne, 118 App. Div. 103; Star Brewing Co. v. Primas, 163 Ill. 652; Amerman v. Deane, 132 N.Y. 355; Batchelor v. Hinkle, 210 N.Y. 243; Page v. Murray, 46 N.J. Eq. 325; Jackson v. Stevenson, 156 Mass. 496. (5) The granting or refusal of the relief sought by plaintiff is a matter of discretion. A court of equity will not do an inequitable thing, and, when the effect would be inequitable, owing to facts arising after the date of an agreement and not within the contemplation of the parties at the time it was made, the court, in its discretion, will refuse to enforce the contract and may remand the party complaining to his remedy at law through the recovery of damages. Koehler v. Rowland, 275 Mo. 575; Abraham v. Stewart, 83 Mich. 7, 21 Am. St. 585; Star Brewery Co. v. Primas, 163 Ill. 652; Jackson v. Stevenson, 156 Mass. 496, 32 Am. St. 476; McClure v. Leaycraft, 183 N.Y. 36, 5 A. & E. Ann. Cas. 45; Orne v. Fridenberg, 143 Pa. 487, 24 Am. St. 567; Ewertsen v. Gerstenberg, 186 Ill. 344, 349; Bedford v. British Museum, 2 Myl. & K. 552; Banks v. Potter, 135 Mass. 245; Jackson v. Stevenson, 156 Mass. 496; Jenks v. Pawlowski, 98 Mich. 110; Amerman v. Deane, 132 N.Y. 355; Batchelor v. Hinkle, 210 N.Y. 243, reversing 149 N.Y. App. Div. 910. (6) The restrictions in this case being unlimited in point of time, the proper construction is that they expire within a reasonable time after their execution, and what is a reasonable time is dependent upon the growth, development and changes in the locality. 28 L.R.A. (N.S.) 707; Hamlen v. Keith, 171 Mass. 77; Amer. U. Assn. v. Minot, 185 Mass. 589.

ELLISON, C.

Suit in equity to enjoin the violation of certain restrictive covenants alleged to govern the use and improvement of lots 1 and 2 and the north twenty-five feet of lot 3 in block 2118 of the city of St. Louis, situated at the southwest corner of the intersection of Grand Boulevard or Avenue with another thoroughfare variously called Flora Avenue, Flora Boulevard and Flora Place. On March 8, 1897, the then owner of the above tract and divers other persons owning all of the other real estate abutting on both sides of Flora Avenue for a distance of nearly a mile signed a written agreement restricting their properties and looking to the improvement of that street at private expense. The agreement is recorded in book 1393, page 384, office of the Recorder of Deeds for the city of St. Louis. Among other things it contained covenants severally binding the signers, their heirs, successors and assigns, not to erect buildings on their respective tracts other than private residences costing $4,000 or more, the same to be used only as such, and they and the appurtenant outbuildings to be set back at least seventeen feet from the street line, with not more than one residence for each fifty feet of frontage of each owner.

The plaintiffs own certain of the lots protected by the agreement as successors in title of signers thereto. The defendant religious corporation, through the defendant trustees, owns the tract involved in this suit by deed from Henry Nicolaus, a party to the contract, and intends to tear down the residence building thereon and to erect a church edifice in its place. In the meantime the...