Wilson v. Owen, 43428
| Decision Date | 14 September 1953 |
| Docket Number | No. 1,No. 43428,43428,1 |
| Citation | 261 S.W.2d 19 |
| Parties | WILSON et al. v. OWEN et al |
| Court | Missouri Supreme Court |
L. M. Crouch, Jr. Harrisonville, Lyman J. Bishop, St. Louis, for appellants.
Adams & Adams, Kansas City, C. E. Groh, Harrisonville, for respondents.
This is an appeal from a declaratory judgment and decree that all covenants, restrictions and stipulations contained in a plat of Neff Lakes, a subdivision of land in Cass County, Missouri, 'including the privileges of swimming, boating and fishing in the lakes in said subdivision were terminated on and after May 1, 1942, and that defendants have no such privileges, either by reason of the recorded plat of said subdivision or otherwise.' From the judgment below defendants have appealed. The trial court having declared and decreed the termination of certain existing easement rights of defendants, the title to real estate is involved and jurisdiction of the appeal is in this court. Article V, Section 3, of the Constitution, V.A.M.S.; Chapman v. Schearf, 360 Mo. 551, 229 S.W.2d 552; Greisinger v. Klinhardt, 321 Mo. 186, 9 S.W.2d 978; Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38; Zinser v. Lucks, 361 Mo. 671, 235 S.W.2d 844, 847; Larkin v. Kieselmann, Mo.Sup., 259 S.W.2d 785; Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894.
The purported termination was by declaration in an instrument executed on October 17, 1941, and filed of record on October 20, 1941, by Willie Elmyra Neff, as survivor of the proprietors and dedicators of the land who had held title to Neff Lakes as tenants by the entireties, and purportedly acting under paragraph 9 of the restrictions hereinafter set out. The purported termination, however, undertook to declare at an end 'each and every of the covenants, restrictions, stipulations and privileges' set out on the above mentioned plat.
The petition alleged that plaintiffs (assignees of the original proprietors) owned certain described land in Neff Lakes Subdivision; that defendants owned various described lands and lots therein; that plaintiffs own Blocks A and B therein, each with a lake thereon; that those two artificial lakes were constructed by the original proprietors, are not navigable, contain fish and the rights to fish in such lakes are a valuable property right of plaintiffs; that the original plat of Neff Lakes was filed of record by George N. Neff and Willie Elmyra Neff, his wife, as proprietors, on May 26, 1927, whereon it was recited that George N. Neff and Willie Elmyra Neff, 'the undersigned proprietors of the above described tract of land have caused the same to be subdivided,' etc., and the lands thereof were made subject to the restrictions thereon set out; that the declaration of termination filed by Willie Elmyra Neff recited that she was 'the owner of land in Neff Lakes * * * (and) owns a majority of the front footage of all lands in said subdivision'; that notwithstanding the purported termination defendants contend the privileges of the use of said lakes are still in force and effect; and the petition prayed a declaration and judgment that the covenants, restrictions, stipulations and privileges set out on the plat have been terminated.
The above referred to restrictions, all set out on the plat, except paragraphs 1 to 7, inclusive, (which granted no privileges but which contained only ordinary building, sanitation and race covenants, restrictions and stipulations) are as follows:
'Restrictions on Neff Lakes.
'All persons who shall acquire any interest in any land in this subdivision shall be taken and held to agree and covenant with the proprietors named in this plat, and with their heirs and assigns, to conform to and observe the following covenants, restrictions and stipulations as to the use thereof and the construction of residences and other improvements thereon, to-wit:
* * *
* * *
'8. The purchasers of lands in this subdivision shall have the privileges of the use of the lakes constructed or built, or to be constructed or built, and owned by the proprietors of this subdivision, for swimming, boating and fishing purposes; but such privileges, however shall at all times be subject to the rules and regulations of said proprietors or to the heirs or assigns of said proprietors, or of any organization or committee to which the control of such lakes may be given.
'9. The foregoing covenants, restrictions and stipulations shall continue in force for a period of ten (10) years from the 1st day of May, 1927, and thereafter shall be automatically renewed for successive periods of 5 years each, unless the owners of a majority of the front footage of all lands in the subdivision shall, not less than 6 months prior to the expiration of first period of 10 years, or not less than 6 months prior to the expiration of one of said successive periods of 5 years each execute, acknowledge and file for record in the office of the Recorder of Deeds of Cass County, Missouri, an instrument in writing declaring such covenants, restrictions and stipulations void after the expiration of the then existing period thereof.
Defendants' answer alleged they purchased their lots at an auction sale conducted on the property by the original proprietors on May 28, 1927, two days after the plat was filed; alleged that in the advertising for said sale and at said sale it was represented and stated that the boating, swimming and fishing privileges in said lakes would run with the land and lots which would be sold and would be for the exclusive use of such lot owners in perpetuity, and that such easement privileges of boating, swimming and fishing were a major portion of the value of the lots so purchased; alleged that George N. Neff died May 4, 1933, and Willie Elmyra Neff, as surviving 'proprietor' was not an 'owner' entitled to file a declaration of termination under paragraph 9 above of the restrictions; alleged that the privileges of boating, swimming and fishing granted by paragraph 8 above were not covenants, restrictions or stipulations which could be declared void under any power stated in paragraph 9 above; and defendants' answer prayed a declaratory judgment that the above purported termination executed and filed as above by Willie Elmyra Neff be declared void and of no effect; and prayed that defendants be declared entitled to the privileges of paragraph 8 above.
The facts as above reflected are largely either stipulated or not disputed. It further appears that, computed on the basis of dedicated streets shown on the plat before us, whether or not said streets were actually opened or remained opened, Willie Elmyra Neff owned a majority of the total front footage of all lots and land in the subdivision at the time her purported termination was filed; that the proprietors parted with the title to less than fifty per cent of all the front footage of land in the subdivision, but there is no evidence that they retained more than half the total front footage for the mere purpose of retaining the right to terminate the covenants, restrictions and stipulations; that plaintiffs obtained title to their land in Neff Lakes by a deed dated August 30, 1946, from the Guardian and Curator of the Estate of Willie Elmyra Neff, an Incompetent, 'subject to any and all the burdens upon it or upon any part of it existing by reason of the plat and dedication of said land as Neff Lakes herein described, and to all conditions existing by reason thereof'; that the sale bills advertising the auction of the lots and acreage by the proprietors on May 28, 1927, which had been theretofore distributed throughout the community, advertised lots and acreage for sale as homesites on beautiful spring-fed Neff Lakes, showed various attractive pictures of the lakes, and stated, ; and that in a half page newspaper advertisement of the auction which was published in the Cass County Democrat, just preceding the auction of lots on May 28, 1927, there appeared in large type 'Boating--Swimming--Fishing--Natural Gas--Electricity * * * Privileges of Lakes Are Restricted to Owners of Homesites and Acres.'
It further appears that the Neff Lakes Subdivision is located just north of Belton, Cass County, Missouri, on Highway 71, and that it was incorporated into the City of Belton in 1951; that the Frisco Railroad right-of-way divides the subdivision; that of the seventy-two lots east of the railroad only five were not sold at the 1928 auction; that some lots west of the railroad and on the lake in Block 'B' were also then sold; that at the auction the auctioneer several times made a complete announcement guaranteeing to purchasers of property in the subdivision the privileges of fishing, boating and swimming in the lakes.
Several of the original purchasers of lots at the 1928 auction testified that up to trial time in 1952 they had never been refused permission to use the lakes; some of the defendant lot owners...
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