Zinn v. Sidler
| Decision Date | 05 July 1916 |
| Docket Number | No. 17632.,17632. |
| Citation | 187 S.W. 1172,268 Mo. 680 |
| Parties | ZINN et al. v. SIDLER et al. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; James H. Slover, Judge.
Suit by Charles E. Zinn and others against Balthazar Sidler and others. From an adverse judgment, defendants appeal. Reversed and remanded, with directions.
Cook & Gossett, Beardsley & Beardsley, and Stubenrauch & Hartz, all of Kansas City, for appellants. Smart & Strother, Fyke & Snider, and E. E. Steele, all of Kansas City, for respondents.
This is a suit in equity brought in the circuit court of Jackson county at Kansas City to enjoin defendants from erecting a building on a lot in McKinney Heights in said city.
A restraining order was granted and later dissolved. After its dissolution and before the trial, defendants erected a building on said lot. In September, 1912, a trial was had resulting in a judgment for plaintiffs, requiring defendants, within 90 days thereafter, to remove so much of said building as projected over the building line on the lot and restraining defendants from erecting or maintaining a building on the lot nearer the adjacent streets than 20 feet in one instance and 15 feet in the other — the lot being on a corner. Jurisdiction to make further orders was retained to enforce compliance with the judgment then rendered. From this judgment the defendants have appealed.
In June, 1886, Marshall P. Wright owned a tract of land of 31 acres adjacent to the corporate limits of Kansas City. He laid it out in lots and blocks and streets and alleys, dedicating the latter to public use, acknowledged the plat and recorded the same, as required by the statute, designating the addition as "McKinney Heights." In 1897 it was made a part of Kansas City.
Across the lots and blocks on this plat, 20 feet from the street lines and parallel thereto — except along St. John Avenue, where the distance is 15 feet — checked or broken lines were drawn, designated as "building lines." Defendants' lot, described as "lot 14 of block 4, McKinney Heights," against which this particular proceeding is directed, is situated on the northwest corner of Jackson and St. John avenues, the former running north and south, and the latter east and west. The lot has a frontage of 50 feet on St. John avenue.
Plaintiffs' lots are in the same block as that of defendants, also fronting on St. John avenue. Plaintiffs contend that the lines on this plat marked "building lines" are restrictions upon all persons erecting buildings upon any of these lots, and that the action of the defendants in violating same is to plaintiffs' damage and injury in that it tends to depreciate the value of their property and interferes with the uniformity of the location of buildings on said tract or addition, which was intended, and is principally used, for residential purposes.
Defendants, in opposition to this plea, contend that at the time this plat was made and recorded the land platted was outside of the corporate limits of Kansas City, and the building lines marked thereon were in no wise mentioned except by marking them on the plat; that neither the acknowledgment to the plat nor any deed conveying the lots therein designated has any reference to same, and that these lines constitute merely a suggestion to owners of property in said addition and have no binding force or effect as a restriction; that they acquired possession of the lot against which this proceeding is directed without any knowledge of the pretended claims or demands of plaintiffs that there was a building line restriction on the property and that they purchased the same believing it to be unrestricted and unincumbered in any manner; that the enforcement of the restriction would constitute a taking of their property without due process of law. The reply admitted that McKinney Heights when platted was not in the corporate limits of any city or town, and that the defendants' title was through mesne conveyances under Wright, who platted the property, but denied all the other allegations in the answer.
In July, 1886, soon after recording the plat, Marshall P. Wright and wife conveyed the entire addition to William McKinney, describing it as follows:
"All lots in McKinney Heights, being originally the L. P. Browne tract, consisting of 31 acres in the east end of the south half of the northeast quarter of section 34, township 50, range 33, Jackson county, Mo.; the plat of said McKinney Heights being recorded in Book B, page ___, June 17, 1886, to which further reference is hereby made."
January 20, 1887, William McKinney and wife conveyed the addition to Thomas A. Harris, describing it as follows:
"All of McKinney Heights (except certain blocks therein named) as the same is marked and designated on plat 5 in the office of the recorder of deeds for the county of Jackson, state of Missouri."
January 28, 1887, Thomas A. Harris and wife conveyed the addition to Calvert R. Hunt, describing it as follows:
"All of McKinney Heights, an addition to the city of Kansas, as the same is marked and designated on the plat filed in the office of the recorder of deeds for the county of Jackson, state of Missouri (except certain lots therein named)."
At different times subsequent to the conveyance to Hunt deeds were made to different persons to lots in this addition.
McKinney Heights was a residence district before the erection of the building by defendants, and at the time of the trial there were 95 buildings on the addition, including that of defendants, 82 of which conformed to the building lines; the remaining 13 having been built in disregard of same. There was testimony in detail as to the conditions under which the different buildings were erected so far as concerned the builders' knowledge and observance of the building lines, tending to show, in the majority of cases, that when notified of the restriction parties complied with same. It was also shown that plaintiffs in no case expressly acquiesced in any violations of the restriction, but when notified protested against same.
A covenant as to the restricted use of the property in question is necessary to sustain the plaintiffs' contention; the creation of such a covenant may be by express words or by reasonable implication from words employed clearly indicative of such a purpose.
The owner, Wright, who subdivided the property and recorded a plat of same, may have had such a purpose in contemplation in designating certain lines on the plat as building lines;...
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