Thompson v. Langan , 172 Mo. App. 64 ( 1913 )

REYNOLDS, P. J. (after stating the facts).—

We have no indication of the theory upon which the learned trial court disposed of the case, other than as afforded by a ruling that he made when a witness was being cross-examined by counsel for defendants, which appears in the abstract. That witness was asked whether a suit for injunction had been brought to enjoin the erection of the two groups of flats mentioned. This was objected to as immaterial, whereupon the court remarked: “Where you stand by and see restrictions of that kind repeatedly violated and make no effort to restrain them by law it practically wipes out the restrictions. He may answer that because they plead you were estopped by your conduct. I will receive it subject to the objection.” To this plaintiff duly excepted.

The evidence shows that when the contractor, one of the defendants, acting for the owners, had taken out a permit for the erection of the building, it was then the plan to erect flats or apartment houses on these two lots; that afterwards this was changed and a permit taken out to erect a hotel and the contractor proceeded to do that. That this proposed building, if intended for flats or an apartment house, would have violated the restriction against erecting more than one dwelling on each fifty-foot lot, is clear. Prom six to nine distinct, separate “dwellings” or flats or apartments were proposed to be erected on the lots, with no line between corresponding to the line between the lots. If designed for a hotel and intended for the carrying on of the hotel business in it, while a single structure, that it was a violation of the restriction against the erection or maintaining of a building for conducting business therein, is also clear.

Either of these' is in violation of the covenants in these deeds. As to the hotel, the question is settled, so far as our court is concerned, by what is decided in Kitchen v. Hawley, 150 Mo. App. 497, 131 S. W. 142. There the restriction against buildings, among others, was that no dwelling house less than two stories high could be erected thereon, and that not more than one such dwelling house could be erected on each fifty-foot front of the lot. Commenting on these restrictions, Judge Nortoni says, it page 504:

“But there is no word to be found in this provision which says that no building other than a dwelling house may be constructed. It is entirely clear that if dwelling houses are constructed on the property conveyed, then they must conform to the requirements above stipulated. The fourth subdivision inhibits the construction of any stable, shed or outhouse nearer than one hundred feet to a public driveway. The fifth subdivision is levelled against any nuisance, livery stable or manufacturing establishment of any kind. The words employed by the grantor with respect to these matters are general and sweeping, indeed, but they do not operate to prohibit a hotel, for such is not per se a nuisance, and, of course, not a livery stable, nor á manufacturing establishment. The sixth subdivision inhibits the construction or use of any grocery store, bar room or business place for the bargain and sale ’ of any kind of merchandise. If this restriction were general in terms and levelled against any business place, of course, it would exclude a hotel, for such is a business place, in ¿ way; but it is to be observed that the restriction is levelled against such business places only as they are occupied for the bargain and •sale of any kind of merchandise; that a hotel is not such a business place is certain. The implication is clear that business places, other than grocery stores, bar rooms or such as are occupied for the bargain and sale of merchandise, are not within the terms of the restriction; for such restrictions are to be construed strictly in favor of the free use of property unless the context of the instrument discloses ah intention to the contrary. ’ ’

So far then as this suit seeks to enjoin the erection of a building to be occupied and conducted as a hotel, the petition sets' out a good cause of action and the evidence sustains beyond cavil the fact that the final intention in the erection of this building’ was to erect a building in which the business of hotel-keeping was to be carried on. That the restricting against the erection of any building on the premises was intended to be general and not particular — intended to inhibit any and all kinds of “business” is made manifest from the language employed as to the lots in Hamilton Place fronting on Delmar avenue. As to those lots it is expressly provided that buildings there erected might be used for trade or business purposes and business houses might be erected thereon. In so far then as concerns' the erection of a. building to be used as a hotel, there can be no question that a building for such purposes cannot be erected as long as these, negative covenants are in force, that is, until the year 1920, and as to that the léarned trial court was in error in refusing the injunction against its erection.

But it is claimed that .the general plan upon which Hamilton Place was laid out and the general object of its creation had been abandoned and that conditions in the neighborhood had changed, and that therefore, all of the restrictions fell in. We considered both of these questions in Spahr v. Cape, 143 Mo. App. 114, 122 S. W; 379, and again in Noel v. Hill, 158 Mo. App, 426, 138 S. W. 364. In the last named case, as here, it was in evidence that on adjoining streets, and across the same street, there were no restrictions, that there were stores and shops across that and bn streets running to the north of and bordering on the restricted locality, the restricted section covering but one city block; in short, that outside of the restricted district, business had grown up and the neighborhood had changed. We held in each of those cases, as in others referred to, that these facts did not put an end to the restrictions. We hold, on the application of those principles to the' facts here, that the restrictions here invoked are not removed by reason of any change of conditions.

The next question for consideration is, whether the fact that flats or apartment houses have been erected on four of the lots within the boundaries of Hamilton Place and while the restrictions prohibiting more than one dwelling on each fifty-foot lot are in force, is an abandonment of that restriction and throws Hamilton Place open for construction of any kind of a building, no matter for what purpose designed. Por if the contention of respondents is sound, that must be the result. It is true that respondents have, for the present, apparently, abandoned their original design of erecting an apartment house and were proceeding, when halted by the institution of this suit, to erect a hotel, but they claim that these flats or apartment houses having been erected and, so far as appears, without steps having been taken to prevent, the restriction confining the buildings to dwellings has been abandoned.

That an apartment house or flat is not a dwelling house, and that the erection of flats within the boundaries of Hamilton Place is in violation of the covenant providing that no dwelling shall be erected on said realty whereof the main part is less than two stories in height, nor shall there be erected more than one dwelling on each fifty foot of said realty, except on lots fronting on the north line of Delmar avenue, has, as we think, been settled by the decision of our court in Sanders v. Dixon, 114 Mo. App. 229, 89 S. W. 577. There our court had before it the restrictions in the deeds under which Clemens Place, the place or subdivision immediately north of Hamilton Place, had been conveyed. Heading that case, it appears that the restrictive covenants are practically word for word as those now before ns, the only material difference between them being that here the covenants are to rnn until 1920; there they ran to 1905. In a very carefully considered opinion by Judge Goode, it is held, all of the judges of our court concurring, that a covenant in a deed providing that the grantee shall not erect more than one dwelling on each lot conveyed, was violated by the erection of a flat or apartment house. In that case and after a consideration of all the authorities determining what is a dwelling house, the discussion commencing at page 247, Judge Goode, quoting the definition given of a dwelling by the Supreme Court of Illinois, in Hutchinson v. Ulrich, 145 Ill. 336, declines to follow that and like decisions and adopts that announced by the Supreme Court of New Hampshire in Gillis v. Bailey, 21 N. H. 149, as “the most apposite and best reasoned” of the cases in which a definition of the word “dwelling” had been attempted. In Gillis v. Bailey the covenant regarding the property was that only one single dwelling house, with sheds, barn and other outbuildings required for the use of the same should, for twenty years of the date of the conveyance, be placed on the lot. The purchaser built a house two stories in height, designed to accommodate three families but fitted up for and actually occupied by six families. The question in decision was the meaning of the phrase “single dwelling house,” and it was decided, in effect, to mean a building intended and constructed for the use of one family. The Supreme Court of New Hampshire held that the structure actually erected was three separate and three distinct residences and dwellings and was in violation of and worked to defeat the purposes of the covenants. This decision of our court is conclusive as to the question that the erection of either apartments or flats, is in violation of the covenant in these deeds against the erection of more than a single dwelling on one lot.

Counsel for respondents invoke the doctrine of estoppel. Oases of this character do not rest on estoppel, and it is clear that none of the elements of estoppel are here present. They must rest on the question of abandonment. That was the case, to illus7 trate, in Scharer v. Pantler, 127 Mo. App. 433, 105 S. W. 668. There a building line was imposed upon all the lots but with the creation of the place or laying out of the tract on which this. building line was imposed, the creator, the party who instituted and in7 serted in her deeds the requirement of a building line, at one and the same time violated it by building over that line, erecting two houses within and nearer to the twenty-five foot line and the line of the street, placing them ten feet over this building line, and while in subsequent deeds she called for the building line of twenty-five feet, in point of fact, without objection from her or anyone-else, parties built, following her buildings, ten feet over this twenty-five foot line. Whep. another party subsequently undertook to g*o beyond this ten foot line and build closer to the street line, some of these parties who had themselves violated this building line, attempted to enjoin the construction, not merely beyond the ten foot line but against the original twenty-five foot line. Our court held, not. that they were estopped by their action, but that the acts of the original grantor who had imposed the building line, and of her immediate grantees, showed conclusively that there was an abandonment of the restrictions pro tanto, that is so far as they prescribed a building line. That, not on the principle of estoppel but on the prin-. ciple of abandonment.

These two sets of flats were built on four out of the one hundred and fifty lots in Hamilton Place, one set some ten years and the other eight years prior to the institution of this suit, and, as the testimony tends to show, all of them erected some time before any of the present owners and residents in Hamilton Place had acquired any rights in it. The testimony is overwhelming that as to all of the numerous dwellings which within the past five or six years have been put up in Hamilton Place, each and all of the restrictions of the deeds as to the character of the buildings have been strictly complied with. Not ohly these present plaintiffs but all other owners and residents in the place, save those who put up the flats, have considered themselves bound by this restriction and limitation as to dwellings and have complied with it. On consideration of the facts here in evidence we are not prepared to hold that there was an abandonment of those parts of the covenants and restrictions contained in the deeds against the erection of more than one dwelling on each fifty foot lot. The vast majority of the owners in the place have observed them. Defendants purchased, took and hold their lots, recently acquired, with full knowledge of them. All of the par-' ties claim under a common source of title; the restrictions are common to all of them; all purchased with notice of them, even the owners of the lots here in dispute. The deeds all appear to have been recorded, and as said by our Supreme Court in Litchfield v. Boogher, 238 Mo. 472,1. c. 478, 142 S. W. 302, following King v. St. Louis Union Trust Co., 226 Mo. 351,126 S. W. 415, “a grantee in a deed creating an easement over the granted premises by its acceptance becomes bound by all its restrictions, reservations and exceptions. In other words, one who acquires title through a deed expressly reserving a right of way through the land is estopped by the deed from denying the existence of the right of way.”

When defendants took their deeds to the premises, they surely knew that notwithstanding the presence of these flats on four lots, all the other owners in Hamilton Place regarded this restriction as in force; their eyes told that; any, even the most casual, inquiry would have shown it. It would be against all fair conduct, against equity, to allow them to defeat all the other owners of lots in the place on such slight grounds. On the old maxim even, sic utere tuo ut alienum non laedas, they should be estopped from destroying the underlying idea upon which Hamilton Place was laid out.; that is, to make it a place for homes, private dwellings, to the exclusion of business. We have no such case here as presented in Scharer v. Pantler, supra, in which it appears that the grantor, the very person who had imposed the restrictions by deed, herself disregarded the building line, by building, outside of it, and this done practically contemporaneously with the imposition of that line. by deed.' If the doctrine of estoppel is to* be invoked and applied here, it would seem that it arises as against defendants, not against plaintiffs. If one of the defendants is correctly quoted, when notified that he must not erect flats or a hotel on these lots, he said that if he was estopped from that he would roof the walls over, as then erected, and let the premises to objectionable tenants. The building was then about one story high. We are not inclined to believe that even if he said this, he said it seriously. To have roofed in such a building, would bring it in conflict with the restrictions which' provide that no ■ building less than two stories high should be erected. on these lots.

We therefore hold that the decree in this case, in finding for defendants and dismissing plaintiff’s case, is erroneous.

The judgment of the circuit court must be reversed and the cause remanded; remanded, not to try it again in the circuit court, for that is rarely done in suits in equity, but for the sole purpose of directing the proper form of decree to be entered.

We are confronted in remanding the case with a very serious problem as to what decree should be entered by tbe circuit court. Plaintiffs asked that defendants be required to remove tbe present superstructure, fill up tbe excavation and remove tbe debris from the ground. We are not prepared to enter sucb an order or to direct tbe circuit court, on tbis record as now before'us, to do so, not altogether for tbe reasons announced by our court in Sanders v. Dixon, supra, because we are confronted here with no sucb situation as was there present by reason of tbe expiry of tbe period of time over which tbe restrictions were imposed, but by one of tbe very practical questions there present, namely, it does not appear which of these defendants should be put to tbe expense and labor of removal. Furthermore, we are inclined to believe, on consideration of tbe case and as far as we are able to understand tbe condition of tbis building, that it may be within tbe power of tbe owner of the lots and of tbe contractor and builder or other parties in interest, to so remodel tbis building as to enable them to obtain tbe use, at least to some extent, of tbe work already done, and of at least some of tbe material now on tbe ground, and at tbe same time conform to tbe limitations and conditions to which under tbe deeds they bold.

We have therefore concluded to remand tbis case with directions to tbe circuit court, to enter up judgment enjoining defendants or any of them from erecting or proceeding with tbe erection on tbe two lots described in tbe petition or on either of them, at any time prior to January 1, 1920, of an apartment bouse or a hotel or any building adapted or to be used for either sucb puipose or for any purpose other than a. single dwelling. Tbe circuit court is further directed to inquire into tbe practicability of a change in tbe plan of construction of tbe structure now on said lots, and if within a reasonable time, to be fixed by that court, tbe owners and contractors and builders of these.proposed superstructures can so change their plan as to proceed under and in compliance with the restrictions in their deeds that they should be given an opportunity to do so, the trial court retaining jurisdiction of the cause in order that it may see that whatever orders it makes are carried out in good faith and with reasonable promptness. If within the time specified by the court defendants, or whoever of them appear to be the responsible parties, fail and refuse to comply with the directions and orders of the trial court, it is then within the power, as it will be the duty, of the circuit court to order the cessation of all work on the present structure and to order its removal; the latter for the reason that to allow it to continue in its unfinished and unsightly condition would constitute the maintenance of a nuisance upon the property, that being in direct violation of one of the terms and conditions of the deeds.

The judgment of the circuit court is accordingly reversed and the cause remanded with directions to that court to proceed as herein indicated.

Nortoni and Allen, JJ., concur.