Wearen v. Woodson

• Decision Date: 05 November 1924
• Docket Number: No. 17758.,17758.
• Citation: 268 S.W. 648
• Parties: WEAREN et al. v. WOODSON et al.
• Court: Missouri Court of Appeals

268 S.W. 648

WEAREN et al. v. WOODSON et al.

No. 17758.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Rehearing Denied December 17, 1924.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Suit by George B. Wearen and others against Burt Woodson and another. Decree for plaintiffs, and defendants appeal. Affirmed.

Arthur V. Lashly and W. W. Schiek, both of St. Louis, for appellants.

A. E. L. Gardner, of Clayton, and Greensfelder & Grand, of St. Louis, for respondents.

DAUES, J.

This is a proceeding in equity brought by property owners of West Portland Place, a subdivision in St. Louis county, against the defendants from erecting a certain building in said subdivision, on the ground that such building is in violation of certain restrictions, recorded in the office of the recorder of deeds of that county. There was decree in favor of the plaintiffs, from which defendants have appealed.

It is admitted that plaintiffs are property owners in said subdivision, also that defendant Woodson built the structure in controversy in this subdivision through his contractor, the codefendant, Schlemmer. Suit was filed in the circuit court of St. Louis county July 31, 1920. In that petition plaintiffs prayed for a temporary injunction and restraining order, which was granted. In ah amended petition the injunction and restraining order was not prayed for, and thus the restraining order under the original petition who dissolved. The restriction admittedly was in effect prior to the institution of this suit, and is in the following language:

"No building shall be erected, the main portion of which is less than two stories in height."

When the suit was originally filed, the building walls were up to the top of the first floor, and after the restraining order had been dissolved the building was completed, and is now being occupied as a residence by defendant Woodson. The defendants, when the suit was filed, resided in the city of St. Louis, and were served with process there, and the first point urged is that the circuit court of St. Louis county had no jurisdiction over the person of the defendants. In limine, the question is addressed to us then, as to whether the action is local or transitory.

Under section 1177, Revised Statutes Missouri 1919, it is provided that suits instituted by summons, except as otherwise provided, shall be brought when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county in which the plaintiff resides, and in which defendant may be found. Under section 1179 of our statutes, it is provided that suits for the possession of real estate, or whereby title may be affected, shall be brought in the county where such real estate or some part thereof is situated, and it is the insistence of plaintiffs that the Legislature, in passing the last section referred to, limits local actions to those brought for the possession of real estate, all others being of a transitory nature, and that the instant suit is not one for the establishment of an easement on property, and that therefore title is not affected, and that this suit regulates the action of the defendants without in anywise affecting title to real estate, relying upon the case of Olney v. Eaton, 66 Mo. 563, loc. cit. 567, and other cases of similar import.

We are relieved of the labor to analyze this section, to a great extent, by our own decision in State ex rel. Schiek v. McElhinney, 190 Mo. App. 618, 176 S. W. 292. In that suit Mr. Schick, now of counsel for appellants in the instant case, brought an injunction suit to prevent the judge of the circuit court of St. Louis county from proceeding in a case in which the property Owners in this same subdivision sought to stop Schiek by injunction from violating this identical restriction. It was contended in that suit that Schiek was building a residence there less than two stories high, in violation of said restriction. Service was had upon the defendant in the city of St. Louis, where he then resided. It was then contended, as here, that such injunction suit did not affect title to real estate, and that the suit should have been instituted in the city of St. Louis, where the defendant resided. We then decided, and we adhere to that view now, that an action to enjoin the violation of building restrictive covenants, constituting equitable easements running with the land, is one in which the title to the land may be affected, within section 1753, Revised Statutes Missouri 1909, now section 1179, Revised Statutes Missouri 1919, and hence that such a suit is properly brought in the county where the land is situated, although the owner resides within another county. And we also then held that such action, although affecting the title to the land, does not directly involve the title within the meaning of the Constitution, and hence the Court of Appeals has jurisdiction of such cases on appeal. That disposes that question. See, also, King v. St. Louis Union Trust Co., 226 Mo. 351, loc. cit. 365, 126 S. W. 415; Miller v. Babb (Tex. Com. App.) 263 S. W. 253.

The second and only other proposition advanced by appellants in the brief is that the restrictive words of the covenant were, at best, ambiguous and should be construed against the restriction and in favor of the landowner, citing Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S. W. 1059, L. R. A. 19180, 869; Zinn v. Sidler, 268 Mo. 680, 187 S. W. 1172, L. R. A. 1917A, 455. The general proposition that restrictive words of such covenant should be favorably construed on the side of the landowner cannot be and is not disputed. The large question, then, is whether the restriction, in the light of all the evidence in this case, is fairly ambiguous, and whether defendant's building comes within the meaning of the restriction.

It becomes helpful to set out plaintiffs' Exhibits I, and J, which are prints of defendant's house, giving the front, side, and nag view of same, respectively, as follows:

Plaintiffs produced architects, skilled in the profession, who gave testimony, expressing the opinion that the building clearly violates the restriction.

E. C. Klippstein, a man of 25 years' experience as an architect, testified that the main portion of this building, or of any building, lies within the four walls of such building; that the four outside walls constituted the main portion of the building, and that such four walls must be two stories in height to meet the terms of this restrictive covenant; that the main body or portion of the building must run up two stories, and that the cornice line on the second floor should be above such second floor; that in the building now in controversy this is not done, the four walls are not carried above the second floor, and the roof meets the front and rear

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE walls of the building at the cornice line which is at the top of the first story. He testified, further, that the main portion of a house constitutes the main or first floor, and that, if the main portion of the house is two stories high, the second story naturally should repeat the first floor, but that in doing so the kitchen or pantry or sun parlor, etc., may be taken off to one side or to the rear and remain one story high, but that the main portion, the main body of the house, the hall, dining room, drawing room, etc., contained within the main walls, would have to be carried another story high in order to meet this restriction and thus constitute a house, "the main portion of which is two stories in height." He described a story and a half house to be a house where the roof cuts off a part of the second floor rooms, where at least a part of the main walls run only one story, and that this distinction is well understood and recognized by architects generally.

Eugene S. Klein, an architect in the city of St. Louis, testified for plaintiffs that the house in question did not measure up to the restrictions. He construed the phrase "a building, the main portion of which is less than two stories in height," with the answer:

"I should say that a two-story house was a house in which the cornice, the exterior cornice line, and the gutter line at the beginning of the roof were approximately on a level with the ceiling on the second floor."

He stated further that a house which does not conform to the definition just given, in that its cornice line is lower than the ceiling on the second floor, is a house which is less than two stories high, "the main portion of which is less than two stories." He testified that the building in question does not comply with the restriction, in that the cornice line, the main cornice line, is at a level with the first-story ceiling.

On cross-examination of this witness, the following questions and answers appear:

"Mr. Schiek: Q. The fact that that portion of the second story rooms would be built into the roof by reason of the cornice line being below the ceiling, would that make it anything less than a two-story house? A. I should say so, although I should prefer to stick to a definite two-story house as having full rooms on the second floor, but this is cut off right here; that would represent a cut-off of 6 or 8 inches on the side of that room, so that the head room on the side of the room from 8½ feet in height may be reduced to 8 feet or 7 feet 9 inches, I should still say that was a two-story house.

"Q. You still say that would be a two-story house? A. Yes, sir.

"Q. Although part of the roof may be built into the rooms? A. Yes, sir; very slightly into the rooms.

"Q. Now, you say then that the fact that the second story rooms would be built into the roof would not necessarily make that house less than two stories, that is correct? A. Yes, sir; not necessarily.

"Q. Mr. Klein,...