Pank v. Eaton

115 Mo. App. 171 | Mo. Ct. App. | 1905

Lead Opinion

GOODE, J.

(after stating the facts). — It was agreed by counsel at the argument that prior to the institution of the suit the defendants had set about the erection of a house or flat, two stories in height, planned for separate occupancy by tAvo families, one on the first and one on the second floor. Each story has a separate entrance, one at either side of the house. Counsel desire us to decide whether such a structure is an infringement of the covenants in the deeds of the several proprietors. The only covenant said to be broken is the one providing that not more than one house shall be erected on each forty feet of frontage; but the other covenants may, of course, be looked to for enlightenment in interpreting the one directly involved. They throw no strong light on the meaning- of the latter covenant. The stipulation against business, prohibits the establishment of any of several kinds of enumerated occupations within the restricted territory, and also any business or proceeding not enumerated, which is prohibited by law. The kind of dwelling-houses which may be built is so far controlled that none costing less than $3,000 can be erected; and that is the only condition imposed in regard to dwellings. What we have to decide is the force of the stipulation against more than one house on each forty feet of ground. In other words, we have to determine whether the structure defendants proposed to erect was more than one house. In a recent case we went into the subject of restrictive covenants in deeds where the prohibition was. against more than one dwelling on a lot. [Sanders v. Dixon, 114 Mo. App. 229.] Such a covenant deals with the use of the premises and is intended mainly to prevent plural occupancy of a lot; whereas the present covenant is not. Hence, an interpretation ought to be given to the present covenant which will uphold the intention to exclude plural structures rather than plural uses. The purpose to be derived from the words émployed was to prevent the erection of more than one house on each lot. In our opinion a building of the sort described is one house and not two. A decision to the contrary is Ilford Park Est. v. Jacobs, 72 L. J. Ch. Div. 669. That was a nisi prius case and, as was pointed out in Sanders v. Dixon, the ruling is contrary to the judgments of English appellate tribunals in Kimber v. Adams, 69 L. J. Ch, Div. 296, and Atty.-Gen. v. Tontine Assn., 44 L. J. Exch. (N. S.) 146.

Plaintiffs cite Harris v. Roraback, 100 N. W. (Mich.) 391. The covenant therein dealt with was against more than one dwelling-house on a lot,.and it was held that each story of a two-story flat constituted a dwelling, or a dwelling-house. But manifestly the covenant in that case was designed to prohibit the occupancy of the lot by more than one family as a place of residence. If a house for some business, lawful and not covenanted against, should be erected in the restricted territory, and the upper story constructed for use as a residence, it hardly would be said that the building was more than one house. To our minds this case is clear. If the grantor desired to restrict the use of a single lot for dwelling purposes to a single family, apt words for that purpose could have been used. No intention of the kind can be drawn, with any confidence, from a covenant against more than one house. The upper and lower stories of a flat may be two dwellings, but they certainly are not two houses according to any use of the word “house” prevalent in this country; and in our judgment the best authorities support this view. All the cases are examined in Sanders v. Dixon, not with reference to the precise question now before us, it is true; but they are sufficiently digested therein to show their bearing on the question.

The judgment is affirmed.

All concur; Bland, P. J., in a separate opinion.

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Concurrence Opinion

BLAND, P. J.,

(concurring). — If, in respect to the kind of a house that might be erected on the plaintiff’s lot, nothing more appeared in the covenant than the following clause, “nor shall any dwelling-house costing less than three thousand dollars be erected upon said premises, nor shall any erection be made within thirty feet of the south line of Bartmer avenue, nor more than one house to he erected on each forty feet frontage,” I would be inclined to the opinion that the covenant prohibited the erection of what is commonly known as flats or apartment houses, intended to be occupied by more than one family, and that the intention of the parties to the covenant was that but one dwelling-house, in the strict sense of the term, i. e., a house to be occupied by one family, could be erected upon each forty feet of frontage. But the context of the covenant, I think, precludes this construction. To erect a house and set apart the first floor for the business of a clothing, dry goods or drug store, and the upper floors as a dwelling, would not breach the covenant. So, also, might plaintiff erect a theater or fraternal hall upon her lot without violating her covenant. I think, therefore, a proper construction of the covenant is that it is not intended that only private dwelling-houses might be erected. But that any house, in the ordinary acceptation of the term, i. e., a building divided into floors and apartments with four walls, a roof, a door and chimneys, but not necessarily a dwelling-house, might be erected, provided the same was not used for any of the callings or purposes specially prohibited by the covenant. An apartment house or flats is not specifically prohibited by the covenant, and I think one such house may be erected by plaintiff upon her lot, and when erected it may be occupied by more than one family.