Shepherd v. Spurgeon
| Citation | 291 S.W.2d 162,365 Mo. 989 |
| Decision Date | 14 May 1956 |
| Docket Number | No. 1,No. 45074,45074,1 |
| Parties | E. E. SHEPHERD, Jr., Ruth Shepherd, Ell Gingerich and Janie Gingerich, Plaintiffs-Respondents, v. L. D. SPURGEON and A. D. Van Horn, Defendants-Appellants |
| Court | Missouri Supreme Court |
Charles N. Pettit, Bloomfield, Iowa, Jayne & Jayne, Kirksville, for appellants.
L. F. Cottey, Lancaster, for respondents.
VAN OSDOL, Commissioner.
This is an action to try, ascertain and determine title to 300.77 acres of described land in Schuyler County. The issue is the validity of a recital in a deed conveying the property, by which recital the business use of the land is restricted. Plaintiffs sought a determination that the restriction is void, and a decree determining title free of the could of the restrictive recital. The trial court found and rendered judgment in favor of plaintiffs. Defendants have appealed.
The case was submitted to the trial court on an agreed statement of facts.
It was stipulated that the facts were that Hale Reeves and Myrel Reeves, his wife, were the owners of the described land on and for some years before September 4, 1941, and on that day conveyed the land to plaintiffs, E. E. Shepherd, Jr., and Ruth Shepherd, his wife, by warranty deed in which the grantors, Reeves and wife, reserved to themselves 'their heirs and assigns the right to the possession, use, income, and benefit' of one acre 'for a term of one hundred years, with full right to alienate and convey the same.' The deed further provided that all The deed also contained the recital (which is primarily the subject of the instant litigation) as follows, 'As part of the consideration hereof it is agreed that no building, booth, or enclosure within the lands herein conveyed shall ever be used for business purposes, and none shall be erected or leased for such purpose.'
The north line of the described tract is approximately one mile in length and is parallel with the boundary line between the states of Missouri and Iowa. The north line of the tract is separated from the state line by an east-west public highway sometimes known as the Iowa Line Road which serves rural communities east and west of the tract. U. S. Highway No. 63 is the principal north-south highway in Schuyler County. U. S. Highway No. 63 divides the described tract into two parcels so that approximately one fourth of the area of the tract lies on the west side of that Highway and approximately three fourths on the east side. The portion or parcel on the west side has a frontage of approximately one-fourth mile and the parcel on the east side has a frontage of approximately three fourths of a mile on U. S. Highway No. 63. The one-acre plot or lot (the possession, use, income, and benefit of which was reserved in the Reeves deed to the Shepherds) lies in the southwest quadrant formed by the intersection of U. S. Highway No. 63 and Iowa Line Road.
The whole of the described tract lies in a territory devoted to agricultural pursuits. It is miles distant from any town, city or industrial area. There are no parks or playgrounds and no buildings in the territory except farmhouses and ancillary buildings.
September 4, 1941, when Reeves and wife conveyed the described land with the stated reservations and restriction, the Reeves farmhouse, barn and other outbuildings were located near the southeast corner of that portion of the described tract west of U. S. Highway No. 63, and a small frame building, in which a previous owner had engaged in the sale of 3.2% beer, was located on the one-acre lot. Reeves had enlarged the frame building and thereafter had operated a filling station, restaurant and neighborhood grocery store.
Plaintiffs, Shepherd and wife, having acquired title to the described tract on September 4, 1941, as stated, immediately entered into possession of the tract, a farm, except the reserved one-acre lot. Soon thereafter, that is, on October 29, 1941, Reeves and wife conveyed their reserved interest in the one-acre lot to defendant L. D. Spurgeon. On later dates, not shown in the record, defendant Spurgeon conveyed one half of his interest in the one-acre lot to defendant A. D. Van Horn; and plaintiffs Shepherd and wife conveyed the portion or parcel of the described farm lying west of U. S. Highway No. 63 to plaintiffs Eli and Janie Gingerich.
When defendants Spurgeon and Van Horn acquired their interest in the one-acre lot, they dismantled the small frame business building and erected a larger building in which they have engaged, through sublessees, in operating a filling station, restaurant and public dance hall and, from which building, they sell at retail groceries including oleomargarine, cigarettes, 3.2% beer, fireworks, gasoline, oil, and automobile accessories.
Further facts were stipulated as follows,
'11. That because of the location of said business, adjacent to the Iowa-Missouri state line and fronting both on U. S. Highway No. 63 and on the aforesaid Iowa Line Road, a large and profitable proportion of its revenue is derived from commerce with tourists and travelers using said highways, and, because of higher license fees and taxes and other statutory regulations on the sale and consumption of oleomargarine, cigarettes, fireworks, beer and gasoline in Iowa, an additional large proportion of the revenue of said business is derived from persons residing in Iowa who find it more economical and convenient to purchase and enjoy those commodities in the State of Missouri, and that, as a result of those factors and as a result, also, of recent improvements in the character of U. S. Highway No. 63 in the vicinity of said tract of land and of a steady increase in the volume of traffic over said highway at said point, the right to conduct various kinds of business near the intersection of the aforesaid highways and on the Missouri side of said state line is a valuable one, and the plaintiffs (the Shepherds and Gingerichs) desire to enjoy and exercise that right.
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Hall v. American Oil Co.
...for years where the purpose of the restriction ceases to exist and the restriction would be no longer purposeful. Shepherd v. Spurgeon, 365 Mo. 989, 291 S.W.2d 162 (1956) (100 Year Restriction ruled unreasonable). An indefinite time restriction was approved in Cook v. Tide Water Associated ......
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J.C. Nichols Co. v. Eddie Bauer, Inc.
...which has been met with judicial hostility in Missouri. Dean v. Monteil, 361 Mo. 1204, 239 S.W.2d 337 (1951); Shepherd v. Spurgeon, 365 Mo. 989, 291 S.W.2d 162 (1956); Kerrick v. Schoenberg, 328 S.W.2d 595 (Mo. 1959). The land-use restraint here is area wide, which arguably makes it even mo......