130 Mo. App. 566 | Mo. Ct. App. | 1908
This is an injunction suit to restrain the defendant from erecting a church building on a ‘certain lot in Kansas City in what is known as the Abington Addition. The facts are that the Abing-ton Land Company opened up an addition with the view of haying it built up with residences. The plain
“1st. Said premises shall be used by the party of the second part, or by his heirs or assigns, including tenants, for residence purposes only.
“2nd. No building shall be erected upon said lot with its front wall less than thirty feet from the nearest line of the street upon which said lots fronts.
“3rd. No residence with appurtenances thereto shall be erected upon said lot costing less than three thousand dollars.
“4th. Similar covenants and conditions and restrictions shall be contained in all conveyances of property in Abington Park now owned by the party of the first part. And in case the party of the first part improves or causes to be improved, any property in said Abington Park, such improvements and uses thereof shall be under and subject to similar covenants and conditions, it being understood that the covenants and restrictions referred to in this paragraph may be varied by said party of the first part as occasion may require.
“8th. Each and all of the covenants aforesaid shall, for said twenty years, run with and bind the lot or lots in said Abington Park, in respect of which the*571 same are made, and kept by eacb and all persons and parties owning, occupying or using tbe same during that time.”
Subsequently defendant bought a lot in said addition through its trustees who were notified of all the conditions in plaintiff’s deed with full notice of the avowed purpose orginally of the said land company that lots in the addition should be used exclusively for the purpose of residences and no other, and were proceeding to erect a church upon the same, in such a manner as to occupy almost the entire lot the front of which would be near the line of the sidewalk, when the restraining order was issued herein. The defendants’ deed contains none of the conditions or restrictions mentioned in that of the plaintiff. The court rendered judgment for plaintiff restraining defendants from erecting its church on said lot from which they appealed.
We have instances where it is held that collateral covenants do not run with the land. [Des Moines and Fort Dodge Railroad Co. v. Wabash Railroad Co., 135 TT. S. 576.] That was: “Where a contract for a traffic arrangement made between two railroad companies, declares that the contract and any damages for the breach of the same shall be a continuing lien upon the roads of the contracting parties, this does not constitute a lien running with the land, when by due course of law it has passed into other hands, although it may be valid contract personally enforceable between the parties.” The contract in that instance had reference to traffic between the two companies, and not in reference to realty, the covenants providing for a lien on the roads for the dámages arising out of a breach of the contract was therefore Avhat is called collateral covenants. “All covenants relating to a subject matter not in esse such as for the erection of buildings upon the premises demised, are personal covenants and
But it is not a question of law that presents the difficulty in this case but its application. We are not impressed with the conviction that the covenants of warranty in this- instance are collateral. The covenants in plaintiff’s deed by their very terms are made mutual as to him and to his grantor, the land company. One of these covenants is that the premises conveyed shall be used by him for residence purpose only; and the land company covenants also that similar covenants, shall be inserted in all conveyances of property in said addition owned by the company. “A covenant runs with the land when either the liability for its performance or the right to enforce it passes to the assignee of the land itself.” [2 Kerr on Real Property, sec. 1218.] And the author in the same section says: “In order.that it may run with the'land, its performance or non-performance must affect the nature, quality or value of the property demised independent of collateral circumstances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties.” There can be no question but what under the covenant mentioned, that as the property should be used for resident purposes only, the plaintiff would have the right to restrain the land, comp any should it attempt to violate its terms by erecting a building other than a residence on any of its unsold lots. This right affects the value of the property conveyed to him; and it is a right attached to the land itself and it does not depend upon any collateral circumstances. The defendants bought their lot, we might say encumbered with the co venant to the plaintiff which created a privity between them.
If we are wrong in the foregoing conclusion the judgment of the court can be upheld on another ground. In the opinion of Judge Thompson we find the following on page 62: “Nor is it at all material to the right of a plaintiff to have such a restriction enforced in equity, that it should be a covenant running with the land. . . . The question, whether, the covenant runs' with the land, seems to be material only on the question of notice; if the covenant runs with the land then it binds the owner of the land, whether he had knowledge of it or not; for he takes no greater title
The defendants however insist that the land company had the right under covenant 8 in the' subsequent sale of its lots to vary the covenants and restrictions in said deed. The language is: “it being understood that the covenants and restrictions referred to in this paragraph may be varied by said party of the first part as. occasion may require.” The language used must be construed with the reference to the intention of the parties to be derived from the circumstances and the nature of the covenants and restrictions in the deed. We can easily see that in the progress of time and the varying circumstances that might occur that it would be to the interest, at least not to the detriment, of the owners of property in the addition that changes might well be made to suit the changed conditions. For instance the price of labor and building material used in the constructions of residences might cheapen to so great an extent that a much better building could be erected for less than three thousand dollars, than one erected for that sum at the date of the deed. Under such a condition a variation in the cost of residence building would be justifiable under the language quoted. Many instances might be given to the same purpose. But we do not understand that the language used could rea
It is true that defendants introduced evidence tending to show that there was a necessity for a church in that particular locality, and that other lots had been sold to purchasers without any of said covenants and restrictions inserted in their deeds of conveyances. But there was no evidence that such purchasers had erected or contemplated erecting other than residence on the same excepting the defendant. Surely it cannot be said that there is no other land in the near vicinity of this addition that would not be as suitable and useful for church purposes as that the church selected. However that may he, speaking frankly for myself, I am of the opinion that there is nothing in the defendants’ creed that would justify it in erecting its house of worship on the ruins of another’s rights. To promote the public welfare the State authorizes the taking and damaging of private property, but this cannot be done under the constitution without just compensation. Here the rights of plaintiff, property rights, are sought to be taken or damaged without any compensation whatever under the plea of necessity.
The defendants’ lot adjoins that of the plaintiff and the building which it proposed to erect would materially affect the value and desirability of his property as a residence. The judgment is affirmed.