Whittaker v. Lafayette Realty & Investment Company
| Decision Date | 06 June 1917 |
| Parties | EDWARDS WHITTAKER et al., Trustees, Appellants, v. LAFAYETTE REALTY & INVESTMENT COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
Judson Green & Henry for appellants.
(1) The restriction of the building line involved in this case was expressly declared, not only by the recorded plat, but also by the express reservation in the deed to defendant "All subject to the restrictions and conditions now governing said property." King v. Union Trust Co., 226 Mo. 351; Lindsay v. Smith, 178 Mo.App. 193, 166 S.W. 820; Hisey v. Eastminster Presbyterian Church, 130 Mo.App. 566, 109 S.W. 60; Bolin v. Tyrol Investment Co., 160 S.W. 588, 178 Mo.App. 1; Townsend's Appeal, 68 Conn. 358; Fete v. Foerstel, 139 S.W. 820, 159 Mo.App. 75; Noel v. Hill, 138 S.W. 364, 158 Mo.App. 426; Thompson v. Langan, 154 S.W. 808, 172 Mo.App. 64; St. Louis Safe Deposit Bank v. Kenneth Estate, 101 Mo.App. 389; Spahr v. Cape, 143 Mo.App. 144, 122 S.W. 379; 13 Cyc. 713-716; Sanders v. Dickson, 144 Mo.App. 229. (2) The reservation is not only based upon the recorded plat and the recital in the deed referring to the same, but also upon the decree of the Supreme Court in directing the administration of a public charity, whereof appellants are trustees, directing the specific reservation made by said trusees thereunder and sought to be enforced in this cause, of which decree the defendant was bound to take notice. Lackland v. Walker, 151 Mo. 210. (3) The reservation in this case thus based on declarations of public policy so declared by the Supreme Court and also on the express recitals of the deed, is not in any sense a matter of inference; and the rule announced in Zinn v. Sidler, 268 Mo. 280, has no application, as the reservation in the instant case in the strongest sense was based upon express declarations of intention and of the public policy whereon same were based. (4) The reservation thus established and sought to be enforced in this case was admittedly familiar to the respondent, as the latter had theretofore received and made conveyances in the same block, containing, with other reservations, the same building line. (5) The projecting "sun porches" admittedly erected by defendant were a violation of the building line restriction. Reardon v. Murphy, 163 Mass. 501; Attorney General v. Gardner, 117 Mass. 492; Attorney General v. Ayer, 148 Mass. 584; Attorney General v. Algonquin Club, 153 Mass. 447, 11 L. R. A. 500; Righter v. Winters, 68 N. J. Equity, 252; Smith v. Spencer, 81 N. J. Equity, 252; Levy v. Shreyer, 43 N.Y.S. 199; Skinner v. Allison, 66 N.Y.S. 288; McDonald v. Spang, 155 N.Y.S. 617. The distinction between an entrance porch and projections, equipped with windows, flooring and doors extending to the roofs, is obvious. Spilling v. Hutchinson (Va.), 68 S.E. 260; Sanborn v. Rice, 129 Mass. 387. (6) The appellants in this case were acting as trustees, not only for the parties in the block who demanded this action, who had built under the same restrictions, but also in behalf of the general public for whom the restriction was originally directed by the Supreme Court in Lackland v. Walker. See Attorney General v. Algonquin Club, supra. (7) There was no question of abandonment or laches in this case, and appellants acted as soon as the violation of restrictions was brought to their attention. St. Louis Safe Deposit Bank v. Kennett Estate, 101 Mo.App. 375; Attorney General v. Algonquin Club, 153 Mass. 447.
Schnurmacher & Rassieur for respondent.
(1) The lot in question was sold "subject to the restrictions and conditions now governing said property," but the lot had never been restricted. The drawing of a building line on the plat did not constitute a restriction, perpetually running with the land. Zinn v. Sidler, 268 Mo. 680. Restrictions, affecting the free use of land by the owner, are not favored by the law, and will not be specifically enforced unless they are sufficiently definite and the intention to create the same is positive. Zinn v. Sidler, supra; Forsee v. Jackson, 192 Mo.App. 411; Hawes v. Favor, 161 Ill. 440. (2) The erection of porches, platforms, steps, or other projections are not usually regarded as in violation of building line restrictions, unless the deed expressly so provides. If the main wall of the building is on the line, that is a compliance with the restriction. Forsee v. Jackson, 192 Mo.App. 408; Graham v. Hite, 93 Ky. 474; Attorney General v. Ayer, 148 Mass. 584; Hawes v. Favor, 161 Ill. 440; 13 Cyc. 713. (3) Enclosing of porches does not alter their characteb. (4) If the appellants and other owners have permitted, without complaint, similar porches to be erected on many other lots in the subdivision, they cannot now be heard to complain of respondent's action. This shows the interpretation placed by the grantors themselves on the so-called restrictions in the deeds. Graham v. Hite, 93 Ky. 474. (5) Having permitted respondent without complaint to erect its building with these enclosed porches, appellants are now barred from equitable relief by their own laches. Forsee v. Jackson, 192 Mo.App. 412. (6) The fact that appellants are trustees of a public charity does not give them any greater rights in this proceeding than if they were suing as private owners.
The plaintiffs below, who constitute the board of trustees of the Missouri Botanical Garden, filed their petition as trustees under the will of the late Henry Shaw, asking for an injunction whereby they sought to enforce the observance of a building line alleged to have been established by them under a decree of the circuit court entered in accordance with the mandate of the Supreme Court of Missouri, affecting, amongst other properties, a parcel or lot of ground purchased by the defendant company from plaintiffs, upon which lot defendant was erecting certain improvements which it was alleged violated the restriction as to the building line for said lot. From a dismissal of the said petition for an injunction, by the circuit court of the city of St. Louis, the plaintiffs appeal.
The record discloses that a large tract of ground lying between Grand Avenue and Kingshighway boulevard, in the city of St. Louis, was deeded by the late Henry Shaw to the plaintiffs as trustees, for the maintenance of the Missouri Botanical Garden, and under this will the trustees were not allowed to sell the property, but could only lease it. The leasing of the property as provided for in the will, was found to be impracticable and an application was thereupon made to the Supreme Court of the State of Missouri for authority to sell the property, which court, in the case of Lackland, et al., v. Walker, Attorney General, 151 Mo. 210, 52 S.W. 414, authorized the trustees to make sale of the property. The opinion in that case sets forth in full the decree which the circuit court of the city of St. Louis was ordered to enter in the case. The opinion of the Supreme Court provides, that, in order to carry out the purposes as expressed by Mr. Shaw in his will, namely, that the adjoining property to the Missouri Botanical Garden be made attractive and desirable for residences:
And further provided: "The court doth adjudge and decree that the tracts so referred to and known as tracts numbers three (3) and four (4), respectively, be sold and aliened in fee, free from any of the trusts, restrictions and conditions in said will declared and set forth, and subject only to the terms, restrictions and conditions set forth in this decree or in the deed or deeds of conveyance to be made thereof by virtue hereof." (Italics ours).
The record discloses that the board, acting under this decree, made a plat of blocks numbered 5435 to 5439 and 5312, and included therein was the property in question in the instant case, namely lot 42 in block 5437; that said plat was duly approved by the Board of Public Improvements and duly recorded; that on the plat as recorded there is shown a building line designated as such on the plat in each of said blocks, the same being twenty feet from the street line on all of the lots, including the lot in controversy, which is lot 42 in city block 5437, on the northwest corner of Lafayette and Spring avenues, in the city of St. Louis.
In December 1911, the board of trustees, appellants herein and plaintiffs below, deeded to the Lafayette Realty & Investment Company, a corporation, defendant below and respondent here, certain inside lots in each of city blocks 5437 and 5438, the deeds for which property recited that they were made by the trustees under the direction of the Supreme Court's opinion, supra, and contained a specific restriction as to a building line as represented on the recorded plat of said addition, but also contained certain other specific restrictions, as will later be set forth in this opinion. These said lots defendant company improved and thereafter sold, and its deeds of conveyance contained the same restrictions as to the building line and other covenants as were set forth in the deeds made by the said board of trustees to the...
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