The Kenwood Land Co. v. Hancock Investment Co.

• Decision Date: 07 April 1913
• Citation: 155 S.W. 861,169 Mo.App. 715
• Parties: THE KENWOOD LAND COMPANY, Respondent, v. HANCOCK INVESTMENT CO. et al., Appellants
• Court: Kansas Court of Appeals

155 S.W. 861

169 Mo.App. 715

THE KENWOOD LAND COMPANY, Respondent, v. HANCOCK INVESTMENT CO. et al., Appellants

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED.

Judgment affirmed.

W. A Medill and Beardsley & Beardsley for appellant.

E. C Hall for respondent.

OPINION

TRIMBLE, J.

--This is a suit by injunction to prevent the violation of certain covenants and restrictions in a deed made by the plaintiff on February 11, 1910. These covenants and restrictions were to continue in force for fifteen years from said date, and those now in controversy are as follows:

"First. During the said fifteen years said land shall be occupied and used by said party of the second part, its successors and assigns, including all tenants, for residence purposes only and not otherwise, which is to be taken to exclude flats and apartment houses.

"Second. There shall not be at any time within said fifteen years more than . . . one residence on lot four. (This is the lot on which the covenants are said to be violated).

"Sixth. To insure the keeping of each and all of said covenants, and to prevent any breach thereof, said party of the second part agrees with the owner or owners, occupant or occupants for the time being, at any time within said fifteen years, including party of the first part, of any other lot or lots within the same block with any lot hereby conveyed shall have the right to obtain from any court of competent jurisdiction an injunction, mandatory or otherwise, to prevent a breach of any of said covenants and to compel the keeping of each of said covenants by said party of the second part."

Without setting forth all the necessary allegations of the petition, it may be said that after stating the above mentioned covenants, it alleges that the defendant is erecting a building on the lot in question which is a flat or apartment house and designed to be used and occupied as such; that said building is two stories, and the arrangement of the rooms, plumbing details, etc., show a clear purpose to finish and complete a building with two apartments or two complete or separate sets of rooms of similar number and arrangement, each independent of the other, and designed for the occupancy of two separate families, one on the first floor, and the other on the second, and being in effect two separate and distinct residences. The petition further alleges that when defendants were about to begin the erection of the building they were warned in writing not to erect it in violation of the covenants, and plaintiff was assured by defendants that they would not proceed in a manner to violate said restrictions and covenants; but that notwithstanding such warning and assurance said defendants have proceeded to erect and are now erecting on said lot a building of the character hereinbefore stated.

The petition asked first that the building be removed or the plan thereof altered and the house so reconstructed as to make it comply with said restrictions; 2nd, that defendants, their servants, tenants, occupants, successors and assigns, be enjoined from using and occupying any building on said lot as a flat, apartment house or duplex house for fifteen years from February 11, 1910.

The answer admitted the incorporation of the plaintiff and of the defendant Hancock Investment Company and denied every other allegation in the petition.

The evidence shows that about the first part of July, 1911, the defendant company began the foundation for a duplex house, which was to be erected according to the plans used in the erection of another duplex house located elsewhere in the city. It is no-where specifically stated what a duplex house is, but we assume it is what its name indicates, a double house or a house in duplicate. About July 20, 1911, the defendant company was notified in writing that the building contemplated would be against the covenant in defendant's deed and in all deeds to lots in that addition. In response to this notification, the defendant's president and chief owner wrote a letter saying: "I originally planned to fit the second floor so it might be occupied by another family but on account of the objections of those residents in the block who are to be our neighbors, I have changed the plans to make but a single residence of the building." Notwithstanding this promise, however, the house was built according to the plan of the other house referred to, and as originally decided upon. In August, when it was seen that no change had been made in the plan of the house, the suit was brought.

The evidence further clearly discloses that the form, shape, location and arrangement of the rooms on the ground floor were identical with those on the second floor, with the exception of a slight difference caused by the vestibule on the first floor and the stairway on the second. The vestibule was arranged so that all that is needed to shut the entire ground floor from it is a door hung in the hallway or space left therefor. So that, with but slight effort and expense, this front entry could be so arranged as that a person going into the front door could go to the apartments on either floor without entering or disturbing in any way the occupants on the other floor. There is no way of going from the second floor to the first nor means of communication from one to the other except down this front stairway which lands in the vestibule. The water and gas pipes are put in such way as that each floor can be separately served, but after the suit was brought, the pipes and the place for the connections on the second floor were plastered over and there is now but one gas meter and one water meter in the basement. The doorbell buttons were put on at the front entrance, and two furnaces, not connected with each other, were installed in the basement, one arranged so as to heat the first floor and the other the second floor and neither can heat both. There is a bath room on each floor. In fact there is no doubt but that, as arranged, the house can be easily used as separate apartments, that is, a family can easily reside on each floor.

There was some attempt on the part of defendant to show a change of plan in the house after the filing of suit, but, if there was a change it was a change of intention in the minds of defendants rather than a change in the plan of the house. The architect and others testified there was no change in the plans or rather that the house was constructed according to the plan originally decided upon. The only change actually made in the construction of the house consisted in taking out some electric light wires in the up-stairs dining room, which had been put in so as to distribute the lights as they would be in a dining room. The gas and water service down stairs could be easily duplicated up-stairs simply by rubbing off the plaster and attaching the fixtures to the connections that are in the wall. These facts are stated to show that, if the covenants forbid a house built so as to permit a different family to reside on each floor at the same time, although all is under one roof and enclosed by four walls so as to constitute one building, then the building in question is, in our opinion, within the terms of the covenants.

It will be noticed, however, that the petition asks that its erection be enjoined, or, that its use as a double apartment or flat be prevented. In view of the fact that, so far as outside appearance is concerned, the house is but one house and has no appearance of being double, and that it can be and is now used only as a single dwelling, and great hardship and loss would accrue if it were ordered removed, and the further fact that suit was not brought until after its construction was well advanced, and equity can be accomplished without such drastic measures, the chancellor who tried the case was right in not ordering the house removed. The question involved in this appeal, however, is whether he did right in granting a new trial in order that the alternative relief prayed for in the petition might be given.

The learned chancellor, after hearing the evidence, found for defendants and dismissed plaintiff's bill. On a motion for new trial this judgment was set aside, the learned chancellor saying he did so "for the reason that the court is of the opinion that the finding is against the law and the evidence in so far as the plaintiff is entitled to a restraining order to the effect and for the purpose of prohibiting said property from being converted into and occupied as an apartment house during the period covered by the restrictions in the deed, and that the finding should have been for the plaintiff and the relief to that extent granted." From this order granting plaintiff a new trial defendants have appealed.

The opportunity of the trial judge to see the witnesses, to estimate their character and weigh their evidence and know what are the real facts in the case, are so great that his judgment in granting a new trial ought not to be interfered with by an appellate court, unless it clearly appears...