163 S.W.2d 1024 | Mo. | 1942
Lead Opinion
Action to enjoin alleged violation of restrictions against the use of certain property in Janssen Place addition in Kansas City for other than residence purposes. The owner by a cross action sought injunctive relief against plaintiffs' interference with its tenant's present use of the property. The trial court found for plaintiffs on the petition and cross action and granted the injunctive relief as prayed by plaintiffs. Defendants have appealed. We have jurisdiction since, according to the uncontradicted evidence, the property as now used has a value of $15,000, but its value will not exceed $6,000 if the restrictions are construed and enforced as contended for by plaintiffs. [Hall v. Koehler,
Plaintiffs are the owners of nineteen lots (15 separate properties) in Janssen Place. [1026] Defendant Metropolitan Building Company (hereinafter referred to as defendant company) is the owner of a lot *930 in said addition. A residence and garage building are located on the lot. Defendant Marie Harden is the tenant of defendant company and is occupying and using the described premises.
Janssen Place, located between Locust and Holmes Streets and just south of 36th street in Kansas City, was platted and the plat filed in 1897. The addition comprises 32 lots, numbered from 1 to 32 inclusive. The lots range from 75 to 100 feet in width and from 188 to 262 feet in depth. The lots face east or west on a 100 foot center parkway, extending from north to south, and containing driveways, parkways, walkways and ornamental plots, which are maintained at the expense of the property owners. The parkway is held in trust by trustees for the lot owners and has not been formally dedicated to public use, but a south entrance has been provided and connections made with Gillham Road. Originally the only entrance was from 36th street. The public is permitted to use the driveways in exchange for the maintenance by the city of street lighting in Janssen Place. A total of 19 large substantially constructed residences have been built and the majority were built shortly after the opening of the addition. All but two of the residences are occupied by their owners. There have been few changes in ownership of the respective properties, and for the most part these changes have been occasioned by the death of those who built the houses. The evidence shows that Janssen Place is a high class residence district and has long been maintained as such.
The deeds to the respective lots, made subsequent to the date of the plat, contain very detailed restrictions concerning the type and kind of improvements permitted and the use of the properties. The restrictions originally extended for a 20 year period, but provision was made for extension of the restrictions and they were subsequently extended to 1930 and thereafter to 1945. All restrictions are now in full force and effect, except for modifications as to a lot not here involved.
We are particularly concerned with only one of the restrictions, to wit, "that said land shall be occupied and used by said second party, its assigns, including all tenants for residence purposes only, and not otherwise." Another restriction provided that there should not be at any one time "more than one residence or dwelling house on any lot in Janssen Place." The other detailed restrictions are too extensive to be set out in this opinion.
The deeds to the various purchasers of lots in Janssen Place also referred to the trust deed covering the center parkway. This trust deed with its several provisions was incorporated by reference as fully as if set out in the several deeds to lot purchasers. It authorized and empowered the trustees to lay out, construct and maintain streets, pavements, sidewalks, parks and ornamental grounds and pay for same by assessments against the respective lots in Janssen Place. *931 The trust deed further authorized the trustees "to permit, suffer and allow the owner or owners of the said 32 lots, or any part of them with their respective families or the tenants under them and their respective families, from time to time to have free ingress and egress to and from such parts or either of them and to frequent, use and enjoy the same as a place of common resort and recreation under and subject always to such rules and regulations as the said trustees shall from time to time make, establish and prescribe, . . . to permit, suffer and allow the owner or owners of said lots or any of them or any part of them, with their respective families, or the tenants under them and such other persons as they may direct, to have free ingress and egress to and from any of said lots by means of said driveways and sidewalks." And further provided, "that the right and privilege to frequent, use and enjoy the before described driveways, sidewalks, parks and places, shall be an easement attached to each and every one of the said 32 lots of land, and passing as appurtenant thereto, and to be had, held and enjoyed in manner aforesaid by the owners from time to time of the said respective lots, and their respective families occupying the same, provided they shall make the annual payments before provided for, and observe such regulations as aforesaid, but not otherwise."
Defendant company acquired its property by foreclosure in 1932, but subject to the same restrictions as other lots in said subdivision. The streets, sidewalks, parkways and ornamental plots have been constructed and are still maintained. Caretakers look after flowers and shrubbery [1027] and wash the walks and roadways. In winter the snow is cleaned from the walks. The expense is paid by assessment against the property in Janssen Place. Defendant company has paid the assessments on its property.
The improvements on the lot owned by defendant company consist of a large three story residence and a garage. The residence contains four sleeping rooms and two sleeping porches on the second floor, and six sleeping rooms on the third floor. The garage has accommodations for three automobiles and an apartment on the second floor consisting of a livingroom, two bedrooms and a bath. Defendant company rented the property to defendant Harden in October, 1938. Previous to that time the property had been vacant for several years, and a caretaker, who lived in the garage apartment, had been in charge of the premises.
Mrs. Harden was a widow. Her family consisted of her mother, her daughter and herself. Immediately prior to renting from defendant company, Mrs. Harden had operated a boarding house known as the Ross place, at 501 East Armour boulevard. She took some of her roomers from the Armour place to Janssen Place. It was necessary for defendant Harden to support and maintain herself and family and she had been doing it "by running a boarding and rooming *932 house." She rented the place from defendant company for that purpose, since otherwise she "could not have paid the overhead alone." She thought that defendant company's vice-president knew that she was intending to take in roomers and boarders. Some interior changes were made in the residence after defendant Harden took charge and she was able to accommodate eleven "guests" on the second floor, nine on the third floor and three in the garage apartment. Mrs. Harden, her daughter and mother had a sleeping room on the first floor. In the diningroom were two tables with seats for 22 or 23 persons.
Mrs. Harden preferred to refer to her boarders and roomers as "permanent guests" or "paying guests," or as persons holding responsible positions, who visited and ate together and enjoyed a home-like atmosphere. At the time of the trial she had some 18 to 21 "permanent guests" who paid compensation for room and board. Most of the "guests" took two meals per day with Mrs. Harden. There were no signs about the place and most of the "guests" were secured on blind adds or "upon personal recommendation of other guests." Mrs. Harden conceded her place was "a boarding and rooming house, if that is what you call it." Meals were served only to those who resided in the house and garage apartment, save for one exception, and not to the public generally. "Guests" could invite friends or relatives for a meal by prior arrangement and on payment therefor. Nine of the "guests" had automobiles.
The court found that the restrictive covenants in the deed, under which the defendant company held title to the property, prohibited the use of the property for the operation of a rooming and boarding house, such as was being operated thereon by Mrs. Harden, and that the use of the property for a rooming and boarding house was a business purpose. Defendant company was enjoined from renting to defendant Harden or any other person for such purpose and defendant Harden was enjoined from operating a rooming and boarding house on the premises. Both defendants appealed.
[1] Appellants contend that the court erred in holding that the use of the property by defendants constituted a business purpose or a violation of the existing restrictions. Appellants' position is that the use being made of the property "is directly and solely a residence use, for it is the home and residence of Mrs. Harden and her mother and daughter, and every occupant who takes room and board makes it his home and residence, where he lives and eats and sleeps;" that the property "is used by all the occupants as a place to live, or for `residence purposes;'" that "there has been no violation of the restrictive covenants expressed and set forth in the various Janssen Place deeds and other instruments of conveyance;" and that "there is no clear and unambiguous covenant or restriction *933 in any of the Jansen Place deeds or conveyances against the renting of rooms for residence purposes."
It is apparent that appellants concede the property is subject to restrictions, but the question is whether defendant Harden's use of the property violates the restrictions. If the intention of the parties to the deed containing the restrictions is clearly expressed the intention controls. "All courts profess to give effect to the plain intention of the parties in imposing such restrictions." [Sanders v. Dixon, [1028]
In the case of Hall v. Koehler, supra, this court had occasion to consider restrictions to the effect that "none of the lots" there involved should "be improved, used or occupied for other than residence purposes. . . ." In that case the tenants were operating in a residence building thereon a kind of eating place which was licensed as a restaurant. By answer the tenants alleged that they occupied the premises as a residence and that incidental to their occupancy of the premises as a residence they operated a chicken dinner and eating place on the ground floor. In ruling the cause this court said: "`The law favors the free and untrammeled use of real property. Restrictions in conveyances on the fee are regarded unfavorably, and are therefore strictly construed,' Mathews Real Estate Co. v. National Printing
Engraving Co.,
Appellants say there is no ambiguity in the language used and that "if the ordinary [1029] meaning of the language is applied, there cannot be held to be a violation of the restrictions by defendant's use of the property." We think the use of the words "said land shall be occupied and used by said second party, its assigns, including tenants for residence purposes only, and not otherwise," was a clear, definite and unambiguous prohibition against the use of the property by either the owner or tenant for the purpose of carrying on a business enterprise. The intent and purpose expressed by the words and phrases used is clear, definite and certain. On the other hand, it clearly appears from the evidence that the primary purpose of the occupation and use of the property by defendant Harden was the keeping of boarders and roomers to earn a livelihood for herself *935
and family. Her residence in the property was solely incidental to the business and gainful occupation there carried on, and she concedes that she could not occupy the property and pay "the overhead" without the income derived from such business. The habitual operation of a boarding and rooming house for the purpose of earning a living and maintaining one's self and family is the carrying on of a business enterprise. [See, Robbins v. Bangor Ry. Co.,
In Semple v. Schwarz,
In Moore v. Stevens,
In Deitrick v. Leadbetter,
In Carr v. Trivett,
In Dingeman v. Boerth's Estate,
In Linwood Park Company v. Van Dusen,
In the case of Baddour v. City of Long Beach,
The mere fact that defendant Harden sought to designate her roomers and boarders as "paying guests," or the fact [1030] that she considered her house a "private boarding house" as distinguished from a public place, or the fact that her "guests" were more or less permanently located does not, under the facts in evidence here, make the operation of the place any less a business. The premises are used for business purposes. It further appeared that defendant Harden had previously carried on the same kind of a business at another location and that she rented the property in question, not as a residence for herself and family, but primarily for the purpose of securing another location for her business enterprise. She brought some of her roomers from the old location to the new and advertised for, and otherwise secured, other boarders and roomers.
Appellants say that the question is whether the use by defendants is wholly unconnected with its use for "residence purposes," and they insist that the boarders and roomers are using the property for "residence purposes" and that defendant and her family reside on the premises. We are not here concerned as to whether the use made of the property by the roomers and boarders is a "residence purpose." It may be conceded that they reside at said address and that they use it for "residence purposes," but no roomer or boarder is a party to this action, which is directed against the owner and tenant. We are here concerned in determining whether the use made of the property by the tenant, with the knowledge, acquiescence and consent of the owner, is for "residence purposes only, and not otherwise." The owner contends that the use made by the tenant is not a violation of the restrictions and seeks to enjoin interference by plaintiffs. The question is whether the use made of the property, the primary purpose of the occupation, violates the restriction. The restrictive covenant expressly deals with the occupation and use by the owner, including tenants. Defendant Harden is not occupying and using the property "for residence purposes only, and not otherwise," regardless of the use the roomers may be making of the property. Her use of the *937
property is a business purpose, even though, as an incident to the carrying on of such business, she may reside on the premises. See, Pierce v. Harper,
Appellants rely particularly on the case of John Hancock Mutual Life Ins. Co. v. Davis,
Appellants particularly emphasize the words "residence purposes," to the exclusion of the other words in the same clause, and cite cases on the question of plural occupancy as no violation of a restriction limiting the use of property to "residence purposes." Among the cases cited are the following: Charlotte Construction Co. v. Cobb,
[2] We hold that the parties intended to provide for a high class exclusive residence district and to prohibit expressly the operation of a business upon the premises or the use of any part of said premises [1031] for a business purpose, and, therefore, that the operation of a boarding and rooming house, as conducted by defendant Harden, was a clear violation of the restriction. This clearly appears from the language used in the particular restrictive covenant, especially when considered in the light of the entire context of the deed, as well as of *938 the surrounding circumstances shown by the detailed provisions of the deed including the terms of the trust deed referred to and incorporated by reference. We further hold that the particular restriction, limiting the use of the property by the owner or tenant to residence purposes, was a reasonable and valid restriction and, under the circumstance here shown, may be enforced by the granting of the relief prayed.
The judgment is affirmed. Hyde and Bradley, CC., concur.
Addendum
The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.
