United States v. 11.06 ACRES OF LAND, ETC.

• Decision Date: 16 March 1950
• Docket Number: No. 5830.,5830.
• Citation: 89 F. Supp. 852
• Parties: UNITED STATES v. 11.06 ACRES OF LAND IN CITY OF ST. LOUIS, MO., et al.
• Court: U.S. District Court — Eastern District of Missouri

89 F. Supp. 852

UNITED STATES v. 11.06 ACRES OF LAND IN CITY OF ST. LOUIS, MO., et al.

No. 5830.

United States District Court, E. D. Missouri, E. D.

March 16, 1950.

Drake Watson, United States Attorney, of New London, Mo., and Charles J. Hughes, Special Assistant to Attorney General, for plaintiff.

Vincent L. Boisaubin, of St. Louis, Mo., for Dr. Julius Jensen as Treasurer and Dr. Julius Jensen and Deborah Jensen individually.

Frank Lee, of St. Louis, Mo., for Dr. John E. Durcan and Dorothy M. Durcan.

Bertha Jay Bremer, of St. Louis, Mo., for Mrs. Cleo Emery, Verbin Gilbert, Katherine Costy and Mrs. Sophia Allen.

Thomas H. Henson, of St. Louis, Mo., for Mrs. Blanch Rieser.

Robert O. McNearney, of St. Louis, Mo., for Mrs. Mamie Garesche.

Hugo M. Walther, of St. Louis, Mo., for Ralph W. and Mary B. Guze and Norman H. Houk.

Claude W. McElwee, of St. Louis, Mo., for Dr. C. and O. L. Johnston and Oveda B. Johnston.

Thomas V. Connelly of St. Louis, Mo., for Anne May Printy.

Albert E. Hausman, of St. Louis, Mo., for Lucy Dobsheutz, Ethel Blase, Arthur F. C. Blase and Gerald Ash.

Stamm, Millar, Neuhoff & Stam, of St. Louis, Mo., for Successor Trustees under will of Charles H. Peck, deceased.

Daniel Bartlett, of St. Louis, Mo., for Trustees under will of Charles W. Scudder.

Malcolm I. Frank, of St. Louis, Mo., for Henry Chouteau, Rine Realty Co. and Grace Wilson Clark.

Henry C. Hughes, of St. Louis, Mo., for St. Louis Union Trust Co., Trustee under will of Lamira W. Kehlor.

HULEN, District Judge.

Plaintiff has taken by condemnation a certain parcel of land in the City of St. Louis which we will refer to as the Eastern half of Vandeventer Place.¹ The question now presented goes to the character of title, or interest, of lot owners in the "Park", streets and sidewalks² in the East half of Vandeventer Place and legal interests to be compensated for. Defendants are those who own or may claim an interest in the lots and Park.

Title to fee in the Park and legal interests to be compensated for is determined by construction to be placed on an instrument dated June 18, 1870. Parties of the first part and second part in this instrument were William Vandeventer and others.³ They held title to the tract now known as Vandeventer Place on June 18, 1870. Parties of the third part in the 1870 instrument were three individuals designated as "trustees".

Based on the 1870 instrument defendants assert conflicting theories to compensation. Some press for compensation for the fee to the Park, claiming ownership therein is in common by 86 owners, and would prorate payment among the 86 lot owners in Vandeventer Place according to frontage on the Park of plot⁴ owned by each. Some East-half lot owners reason that each lot owner owns severally a portion of the Park, to be determined by extending the east and west boundaries of each plot to the center of the Park. There is a dispute as to who is entitled to compensation for the easement of use of the Park held by owners of the 86 lots. There are also differences as to whether restrictions had been abandoned prior to the taking by plaintiff with the resultant issue, shall the property be valued for compensation purposes subject to or clear thereof, and is any compensation due for destruction of restriction resulting from the condemnation.

Deposit has been made by plaintiff of estimated compensation due for all property taken. The land was taken as of the 21st day of May, 1948. The next order is the appointment of Commissioners to view the premises and fix the compensation due the land owners. Title and interest condemned must now be fixed, and a judgment entered that is final as provided by Federal Rules of Civil Procedure, rule 54 (b), 28 U.S.C.A., to that feature of the case, not only that the appraisers may be instructed as to basis of determining compensation due defendants, but for use in any subsequent Court proceeding on sole issue of compensation or who may be entitled thereto.

The 1870 instrument was drawn with care. I think an interpretation from "the four corners" (Utter v. Sidman, 170 Mo. 284, 70 S.W. 702, 704) of the instrument evidences plainly the meaning and effect that should be given its terms.

I construe the instrument of June 18, 1870, creating Vandeventer Place to be a trust instrument for a limited period, as far as it may determine any interest in the fee to the Park in the defendants. It is a creative instrument in perpetuity as to restrictions on Vandeventer Place.

The purpose of the instrument, broadly, is to provide for improvement and disposal "of the * * * land building lots to the best advantage". The grantors desired to present a fixed and complete plan to prospective purchasers of lots in Vandeventer Place, as to future improvement and operative restrictions. They desired to secure execution of the scheme for improvement and the enforcement of the restrictions immediately upon sale of the first lot and ever after. They endeavored to set up procedure for control of the property for all time, in so far as man may envisage. The instrument delineates how these objectives shall be achieved.

At the outset is a dedication of the Park property — "to the use of the persons who may purchase and improve the lots of ground situated around said parks or places * * * not for * * * public use". The grantors devised to lot purchasers "the use * * * of the parks and places so laid out, upon the terms * * * and subject to the * * * restrictions" set out in the instrument. Since a majority could not function until a majority of the lots were sold, conveyance in trust was made of the Park as a preliminary safeguard, to assure firm establishment of the scheme of improvement. While the initial conveyance contains language denoting a conveyance of some indefeasible interest to the trustees, a later paragraph cuts down the force of such terms as were used. I quote: "But upon trust, nevertheless, for the uses, * * * purposes, and with the powers, and subject to the regulations and restrictions hereinafter expressed". These trust terms, following language of apparent conveyance in fee, take precedence over those prior conflicting provisions.

The provisions of the instrument setting forth the purposes of the trust and duties of the trustees are in no case dependent on the trustees holding the fee. The trustees are to "improve the space" to be used for the Park "in the particulars" set forth in the instrument and "as shall be devised and approved" by the grantors. Three paragraphs follow setting out specific instructions to the trustees for improvements. Next is a paragraph placing power in the trustees to finance execution of their duties, with directions to "permit * * * the * * * owners * * * of * * * eighty-six lots * * * to have free * * * egress to * * * such parks * * * subject always to such * * * regulations as the owners of two thirds in number of all * * * lots * * * shall * * * prescribe; provided * * * in * * * prescribing such rules * * * said owners * * * shall each be entitled to one vote * * * to each lot owned." This is a restraint on management of the property by the trustees.

Authorization for successor trustees in case of resignation or death of any of the three originally appointed is provided. This does not extend the trust beyond the time of death of the last of the three original trustees, but provides a way for three trustees to be in office during the lifetime of the survivor of the three named in the instrument. Finch v. Edwards, Mo. App., 198 S.W.2d 665.

A clause for the appropriation of "a sum equal to one hundred and fifty dollars" from the sale price of each lot, for improving the Park, is evidence of a consideration passing from lot purchasers to the grantors for the fee of that portion of the Park adjoining the respective lots, even though the Park as a whole be burdened with an easement in favor of all lot-owners. Dulce Realty Co. v. Stead Realty Co., 245 Mo. 417, 151 S.W. 415; Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363.

Then we find four numbered paragraphs giving notice to and made binding on purchasers of lots. First: each lot owner "shall forever hereafter" be "bound * * * for the payment * * * of one * * * eighty-sixth share of all * * * sums of money as * * * parties of the third part trustees, or the trustees for the time being or such treasurer shall * * * lawfully * * * expend" to execute the powers and duties created by the instrument, with authority to enforce collection by court action. Second: restrictions as to the improvement and use of premises by lot owners. Third: an "easement" in favor of "each * * * of the * * * eighty-six lots of land" is created, to be "enjoyed * * * by the owners". Fourth: Notice to lot owners of the restrictions and covenants imposed and that they shall be "appurtenant" to each lot.

Specific authority is given the trustees "for the time being" to protect the premises and enforce the restrictions imposed by the instrument. Here the trust character of the instrument is emphasized — "And it is further provided, declared * * * that whatsoever trusts are hereby created", as to the powers conferred, the trustees "accept the * * * conveyance and trusts" but, "Further Provided (anything hereinbefore to the contrary notwithstanding)" that "immediately upon the decease of the last survivor of" the named trustees "the trusts aforesaid (as actual trusts) and the legal or equitable estate of the parties of the third part trustees * * * shall absolutely cease and determine".

Provision is made for enforcement of the restrictions and maintenance of improvements to Vandeventer Place following termination of the trust created by the 1870 instrument. The lots at that time having in anticipation been sold, the necessity for trustees was past. Thereafter enforcement and up-keep according to the plan was to be carried out "strictly * * * as covenants, * * * restrictions and charges", by ...