*1 Compton Heights Appellants, Linnia et Rombauer Christian al., (2d) Ch et al. 40 urch 545. W. One, June Division 1931. *3 appellants. X. Hiemenz for
Edgar B. and Frank Bombauer *4 Fauntleroy, respondents. & Cullen Edwards Abbott,
O* enjoin certain equity violation of'
ELLISON, C. Suit alleged govern improvement the use and restrictive- covenants twenty-five 3 in block feet of lot of lots the north corner of the in city Louis, the southwest of the of St. situated- at thorough with another tersection of Grand Boulevard variously Flora Avenue, Boulevard and Flora Flora fare called above tract and March -then owner of the 8, 1897, Place. On abutting on owning' of the other real estate persons other all divers signed nearly distance of mile of Flora Avenue a: both sides looking to the restricting properties and their vuitten n agreement' is expense. The improvement private of that street at Deeds for the Recorder 1393, page office of book recorded covenants Among things it contained St. Louis. assigns, not. heirs, signers, successors severally binding the their private than tracts other buildings respective on their to erect such, more, same to be used costing $4,000 residences back at-least outbuildings set to be appurtenant and the residence than one more line, wdth not feet from the street seventeen frontage each ovmer. fifty for each feet 'of .agreement by protected lots plaintiffs own certain religious The defendant signers thereto. as successors in "title tract involved trustees, ovms through corporation, íhé defendant *6 Henry Nicolaus, party contract, deed from this suit to the to down the residence intends lean thereon.and er^ct being In the place. edifice its meantime the church house is purposes fraternal connected with for certain social used church dwelling. plaintiffs enjoin- The as a seek to these work and not contemplated of the contract. The be- present and court .breaches plaintiffs’ bill. and dismissed the From low found defendants . plaintiffs appealed. that decree the have court, agreement did held not lot trial The restrictive coyer, ruling 3; twenty-five and as to lot feet lot and the north growth development owing to the- was. that natural vicinity fronting Grand had ceased to in that only purposes, value residential but be desirable valuable for had uses; respondents could erect church there and that the for other whereas, loss, appellants, damage or without inconvenience destroy the the lot. And so would value of enforce the restrictions equity though appellants’ bill without the con- it was held was tract did cover lot 1. evidence on these issues will Ir bearing understanding an case. fully necessary as -out as set immediately figures in part which platA of Flora Place below, respondents’ being tract controversy is next inserted in heavy shown outline. the, tract are feet composing lots It. will three noticed be fronting n feet, .131 all east depth aggregate
long of an This Avenue; Place. lot Flora 1 abuts lot agreement by owner, put the former Nicolaus. into tbe alone right undoubtedly ruling 'point, court was its on that The trial opinion. Also, proven it was we show later in the shall chain in Nicolaus’s title there was a deed from a records that grantee reciting . . “the front line each of said lots . 'former *7 Avenue,” building stipulating of Grand and no is the west line forty feet. closer said line than should be erected thereon to ever city In 1924 width of one hun- the increased Grand to the twenty feet, dred' for which feet was to taken off east or is be the making length involved, their end of 'the three lots here feet. by building in 1896 on the tract was Nicolaus The residence built by appellants the was agreement the restrictive invoked before signed. toward entire structure is It faces Avenue and the of, south, well to the Flora Place say, that is outside seventeen-foot except porch north side of line, restriction that a on the (The plat does not projects the over line about four feet. house the this;) however, by the That, porches was forbidden as to show: not. dwelling house conformed agreement, restrictive' so can be the said though built before. signed by Nicolaus, it had been to the contract roadway was unimproved, but Flora at that was there Place time bordering with catalpa trees it. agreement
The restrictive was dated March 8, 1897, as we have acknowledged by stated. It ivas the several signers, respectively, on various dates between March and 3, June 1897. acknowledg- respondents’ ment of predecessors title, Henry in Nicolaus wife, and was taken 17, notary’s on March 1897. Tbe acknowledg- certificate of signed ment on 3, 1897, was June and the instrument filed for record on 24, June 1897. Contemporaneously things certain other were done.
A agreement collateral bearing the same date as the restrictive agreement was entered into between nearly all property of the having owners lots on the south side of Flora Place, providing for improvement the private thereof expense, at improvement the scheme covering grading, paving, curbing, guttering, sidewalks, trees, shade gas, seiver and pipes, park Avater strip fifty and a about feet wide in the center of aA^enue, the “in a manner similar to Yandeventer provided Place.” It was AA'ater,gas title to the pipe sewer systems signers installed shall be held for the benefit of the by cer tain dispose trustees same, right who should of the the to use the city' same, to Louis, the St. parties, proceeds or to other the net sale to improArement be devoted the to park and maintenance of the place superstructure agreement of the avenue. This recorded 1413, page City in book 6, Recorder Deeds office the of the St. Louis. foregoing making arrange- -the owners were
While the whereby steps being ments between themselves were also taken the city development. Nearly have of St. should a hand in Louis the before, April approved year an ordinance had been providing widening for to width Flora Avenue feet by contracts, authorizing the distance and. covered two instructing proceed City that end. And Counselor to date, contracts, by two March five before the of the days $30,884 damages for the appropriated pay ordinance private widening avenue, in favor of theretofore assessed final decree by report individuals of commissioners years March, 1913, an City later, St. Louis Circuit Court. Some strips along the center setting park passed ordinance aside they should be park purposes providing of the avenue Department. Park maintained years trial below During from the time thirty always restrictive has is that evidence Place all in Flora real estate
been observed owners of *8 residences,, something some like respects. There are substantial .One, $100,000. less than reproduced now for of which could not be Those $75,000. many years $65,000 or inore ago, cost about built not in- Appellants recently average. expensive, on the erected are less many of them. Re- showing thirty photographs over troduced appears from which it fifty photographs spondents introduced about with rub- littered were somewhat six are vacant and that lots taken. were pictures overgrown the time with at bish and weeds side west show that large A further part photographs of these blocks, both north at five least of Grand Avenue for a distance grown into a Place, has Flora intersection with and south its being de- now district, instances the residences in some old business buildings suitable mainly with uses, but voted to business nature of the business. however, tendency was, some toward development
There back signed. 1897, when the restrictive A double- railway Avenue, track then as now ran street Grand there saloon, drug a a were store and some other business establishments intersection, three south of the Flora Place blocks another saloon and aged people for five south, a home blocks and some houses business orphans’ Episcopal and an home the same distance north in- today, tersection. even side But this west of Grand Avenue in immediately place shops south of the block Flora there are no buildings there, only stores. The two two old fashioned are resi- being dences, occupied one the Liederkranz Club and the other involved in this The northwest corner of Nicolaus house case. vacant, store a block further the intersection is but there a north block. the same at northeast corner of On the east Avenue, side Grand however, appear there no be buildings
business for several blocks both north and south of Flora Thus, Place intersection. beginning, blocks coming five north and Compton Reservoir, Hill open, parked south stretches with an frontage for á distance four blocks within one block of the in intervening tersection. In mostly this block are residences if not all a;nd opposite used doctors’ offices, the Flora Place intersection is a recess or cul extending d'e sac block, east about all a of which is 'uses, restricted to residential called Flora Court. point From this for another block dwelling south are houses. Then comes the en trance Longfellow Hawthorne and Boulevards set off with orna mental double masonry ‘columns of Thence, each side. sd far as photographs show, Grand Avenue south two runs blocks more to the intersection any with Shenandoah Avenue before there are business.houses, though testimony'about picture there is a show vicinity,
But the' evidence for is that all this on both respondents of Grand practically sides Avenue for several blocks is unsalable for residence' ‘because of the encroachment of business purposes, enter- stores; prises, shops, large "apartment hotel, Mis- apartments," souri Pacific "Hospital, undertakers’ establishments and thé offices of gasoline filling dentists, doctors and as well stations. as one two Statement, was made that one has been built on residence part during past and one years, this fifteen years witnéss, ageiit, for ten real estate said he had tried to sell intersection, at the Flora Place lot northwest corner of this same A but success, without restrictions. num- because expressed opinion ber of witnesses for that a hand- respondents property, set back south at least' some seventeen,feet edifice on the Nicolaus church Flops' meeting thus property line and from.the *9 (as respondents offer to that extent Place do) restrictions to building, ar- but not character and use of the would as to the a development help Flora Place as resi- rest commercial and this therein,- except, injure property the dential district or at least not respondents shown, however, that possibly, adjacent lots. It was the" say Appellants they bought of lots. knew the restrictions when the large numbers of congregation of public building, the of the use noise and people, with the attendant parking and of "automobiles retreat residential detrimentally affect this confusion, traffic would busy city; and of the years onrush ago anticipation set off a rights founded on are their from aside these considerations of nuisanees. governed contract and not the law St. Louis map prepared zoning Respondents introduced a property City shows this Plan examination Commission. An seven of aborit blocks for distance side Grand Avenue the'east opposite Place is restricted to say, Flora residential use’ that is to for five blocks north of the intersection and two blocks south it. On along side of the west Grand Avenue the same it is distance thrown open as a except abutting commercial district the corner lots Flora Place. The on tw’0 of the streets that Flora cross namely, Thirty-ninth Place, Thurman, and is marked for commercial map up alley fronting use'on the back to'the line of lots Flora Place, whole but the of Flora Place is shown as restricted to resi- dences. wide, photographs strips, fifty park disclose that feet length nearly mile,
the center of Flora Place its now for full lines, grown curb have trees to mature size occasional clumps shrubbery, flowers, good covering ornamental some curbed, driveways prop- paved sod. The are and next erty end, At its west lines are sidewalks with trees. parkways Avenue, an to Missouri faces entrance at Tower Grove Flora Place generally Garden, is called. Garden, Botanical as it more Shaw’s Avenue, meeting where lots here involved end, At its east following located, photo- is shown an ornamental entrance are graph. residence is at left. The Nicolaus not involve injunctive It. does relief. purely is This action I. Bank v. sense. [Nettleton in the constitutional to real estate
title 948, (2d) Estate, 2 W. McGauhey’s Mo. record dis- jurisdiction take because We 776.] |Secs. $7500. dispute exceeds amount in eioses Amend Missouri; Secs. VI, Art. Constitution testimony. There is R. S. of 1884; ment See. 1929.] the restric $65,000 freed involved over value the three lots land on the with them sought enforced, and that to be tions photographs and the evidence $13,000. about This worth within the reaches involved pecuniary amount plainly show Co., Wave Ice Polar *10 jurisdiction of this court. [Aufderheide 337, 356, 365, (2d) 4 788.] Mo. W. 12 II. It is furthermore clear that agreement the restrictive covers 1
only lot of the brought three lots suit, into the and that the chan correctly cellor ruled question. petition that In their and at the appellants
trial sought to make the apply. restrictions to all three of the.lots, they state in their brief °kject suck ^ie evidently °£ tbeir bill. But that con tention is not now seriously urged, for in course argument they their say “respondents that right, have no to erect any church or building except strictly private residence 1 acquired by on lot Henry (italics them from ours), one Nicolaus” leaving thus out and 2 making no reference to lot and the north twenty-five feet of lot 3. appellants’ present position But whatever may be, we are only sign convinced the 1. bind lot In restrictions ing agreement each only respect owner covenanted with real might estate he then owned acquire; thereafter such and each signature covenantor indicated putting after his lots he was into agreement, frontage. and their Henry After Nico- the name appears: laus following “1 block feet block 7.” lot obviously This means a frontage lot of block with feet, lot, and another block, 2117, No. in another with a fifty frontage of feet. just
III. stated, impliedly As we have the trial court ruled or the restrictive apply did to lot 1—but refused conceded Respondents are satis enforce for other reasons. saj^ result, fied with but the court should have that gone contract did not cover further and held the agree even theory proper lot 1. construction the Their is that on a ment and not property fronting bound on Flora Place merely summary A abutting thereon, true of lot. as is is as follows. Where eye contract reviewed with an to that contention italics are used ours. are expressed instrument is to be between owners of lands “abut-
ting on Flora Avenue,” and recites it is the intention parties of'the to have Flora Avenue between Grand Avenue and ToWer Grove “fully improved in place a manner similar to Yandeventer' with the view of making fronting the lots ón said' Flora Avenue suitable and desirable for purposes residence, and with the view always maintaining them as a residence district.” Then follow the restrictions heretofore mentioned. Among these any restrictions parcel one recites that “where any
land owned frontage one présent covenantor has a at timé on Flora fifty less, only Avenue of feet one residence shall be erected thereon.” It continues where then “front- age” Avehue, only of at fifty least feet residence build- on Flora one
13
on each such lot “so that
ing shall be
effect of this
erected
be,
building
than
shall
that not more
one residence
shall
covenant
fifty
frontage
any
parcel
erected for each
feet of
be hereafter
greater frontage
fifty
having a
than
feet.”
of land now
building
hereby
A
“A
further
restriction is thus stated:
is
line
abutting
property
established, which, as to all
south
line of
line;
is'
feet south of said south
Flora AArenue
seventeen
and as to
abutting
thirty
north line
Flora
property
all
on the
Avenue is
every party
north
north line. Bach and
hereto
feet
of said
who
on the south line of Flora
property
Avenue .
.
.
owner
any
any
.
.
.
that he will not at
time hereafter erect
covenants
building
north
said
property,
on such
so owned
him
line;
say,
is to
within seventeen feet of Flora Avenue.” Then
that
towers,
provision
balconies, porches, plat
about
follows a further
governing
steps, and a set
restrictions
erection of
forms and
buildings
property
and structures on
“on
north tine
similar
Avenue.”
Flora
binding
signers
of the covenants on
respect
With
effect
provides that “each covenantor
binds himself
the instrument
foregoing
and restrictions
limitations
as
to the observation
may
acquire abutting
owns or
hereafter
property
such
as he now
designated.”
within
limits above
Further
on Flora Avenue
attempted
or
violation
“in case of violation
is a recital that
any
assigns, of
covenant
successors,
his
heirs or
any party hereto
infringement
attempted
any
or
agreement above set forth or
created,
any
then
infringement
any
hereby
of the easements
one
respective heirs, succes-
parties hereto, their
the other
or more of
Avenue,
abutting on
any property
Flora
assigns, owners of
sors or
right
institute
designated,
have the
the limits above
shall
within
equity,”
specifically
in law or
appropriate proceedings
agreement says
concluding,
that
right
And
injunctive relief.
conveyance with ref-
this
party
makes
“each
hereto
abutting
acquire
hereafter
may
he-now owns or
to all
erence
designated.”
the limits above
on Flora
within
“front”
contend, that
words
true,
respondents
It
ordinarily
it is
thing,
when
“side” do not mean the same
meaning is, fac-
certain street the
or tract fronts on a
said
house
J.
Andrus, 81 N.
v.
ing
that street.
[Howland
or front side toward
signifies
“fronting”
very often
But
Eq. 175, 179,
1—I Shriver, 269 Ill. 164, 169, 709; City N. E. 708, of Des Moines
Dorr,
In this case it is evident from the contract whole that the words “fronting',” “frontage” "abutting'” interchange- were used always ably, thought with the put the lots under restriction upon bordered the street about which development centered. though This is true strictly the instrument be construed, as re- say spondents be. purpose should agree- of the restrictive *12 only ment to uniformity, was insure not use, the but also in the buildings character of to be erected and the distance should be set back from the street line and from each other. And while platted the Nicolaus tract was to east on Avenue, face and by a deed his chain of the title west line of thoroughfare was lots, made “the front line” of his notwithstanding and this only was the tract one the whole area that did abut restricted yet sideways Avenue, on Flora paper situation nothing had object sought parties do with the to attain. So far as the owners of the other lots were concerned the Nicolaus lots did front on They Flora Place. abutted it and failure to observe the restric- improvement tions there would interfere with the scheme much as as anywhere else. Respondents “paper contend that may while the situation” have property made no difference to the other owners made a dif- vast ference to Nicolaus. His long Lot was a narrow strip abutting fifty-six only feet forty-foot Flora Place feet wide. The Grand Avenue restriction only line made the west 160 feet of the building lot available purposes, with the seventeen-foot for. buildings Place restriction superimposed, Flora put only could be thirty-nine on the south feet of strip. Further, that 160-foot Flora Place building restrictions allowed but one to each feet fifty frontage. In words, signing agreement after Nicolaus was left in a situation where the maximum amount of he could do on Lot put would be to parcels three residences on three ground fifty- by thirty-nine feet, feet with ten feet of unrestricted over, resting plus forty land left feet under the Grand Avenue Respondents restriction. assert it is incredible that he would have handicapped intentionally. thus himself — agreement. But this is not a suit to reform the restrictive The parties by and this court are bound says, what it and there no exempt room his lot construction.. On contrary, consider- ing' why aliunde it encouraged the-evidence is not difficult to he see -development. Flora Place His lawn fronted feet on Grand n H;e pretentious two-story had a with Avenue. home stable for horses, 1896, just improve- twelve both built in about the time the evidently of Flora projected. ment Place He had faith in was neighborhood buildings as a residence location. His already were more than seventeen feet back from the Flora Place line. he would not want to erect He knew additional’structures there so long premises used for a home, as the were and very likely he' sightliness thought its and value cornering would be enhanced high on a class residential boulevard such planned Flora Place as yet, And he made this development be. while concession to the caution, put he because though showed he lot under restriction In opixrion agree- tract was used a whole. our restrictive clearly right covers lot ment trial court was in so holding. day
IV. As will be that on recalled the property the saíne involved, made the restrictive here those of them owners who owned lots on the south' side of Flora Place laying out,' eILtered into a collateral contract thoroughfare park and maintenance of the improvement strip's private expense. years at Sixteen 1913 the later in. of St. strips charge .in park put Louis took over the them Park pleaded in their answer and con tíepartment. respondents *13 change by consenting appellants, trial this the tended the that to at title, right predecessors in their -their enforce the abandoned agreement lots, protecting in separate restrictive their that’ permitted thoroughfare parks privacy their and the and surrendered black,” open public whereas the to be thrown to the “white plan had been to Flora Avenue im original restriction have “fully proved with view of in a manner similar to Vandeventer the Place fronting lots on said Flora Avenue suitable and de making the residence, always and with view of main purposes for of the sirable In Vandeventer Place the taining them as residence district.” that fact stressed thoroughfare parks private, and were and was per to and did enforce restrictions appealed court was this when 311 Mo. Co., Louis Union Trust taining in v. St. thereto Pierce instant in 'the case made court below 281, 278 S. W. 403. The improvement con street finding' in its that collateral decree said public now a abandoned; is street that Flora Avenue been tract had Louis;” park by city and that the operated the St. “owned purposes park and main aside for Place set in Flora are now strips grounds which the to be city. appears one the This tained is am .though as written decree denied, the injunction the trial, however, court that "the assume, point. We biguous on that to base its decree intended finding unless it have made the would .not part. it,; at- least ... respectively, lotsp their three .be- acquired appellants . All five the 1,913 the maintenance city took .over owned, .the them when fore park strips year; of the and all of these lote are on the south predecessors side of Flora Place. The title two these three signed ownerships improvement agreement. the street And so we concede, purposes shall for case, if turning over park strips of the to the city forfeiture, worked a abandonment or protection of the separate of the waiver agreement, restrictive appellants thereby. are bound consequence
But think no such we followed. Flora was a public street when both Otherwise, why contracts were executed. city was it that- the pay $30,000 St. Louis ordained to damages widening just days for the thereof on 3, 1897, March five before property improvement owners’ signed? street contract was brought fully, facts are not out but it is clear there was some kind of concerted action about this matter. As we view the evidence the improvement street contract from start was an improve private expense thoroughfare already and maintain at opened opened public, private way. or to be to the not a And there believing signing for hoped get reason then owners city them; to take improvements, a'párt over the or at least provision was a improvement there contract that certain gas water, pipes signers, trustees should hold sewer for the dispose same, right of the same, or the to use the to the parties proceeds of St. Louis or to apply the net of sale improvement place park and maintenance of the and of the superstructure of the avenue. neighborhood
There is that the has no evidence tone been lowered and none that the residents has been sacri- seclusion change maintaining ficed because park in the method of strips. agree- There no law so far as we know that a restrictive ment cannot enforced because the land covered it abuts on a be Every public street. reason that ever existed for the enforcement particular of the restrictions exists now-so far as concerns the under If and to extent the phase of the ease whatever discussion. *14 injunction ruling denying was based on of the trial court the the city Department that Park has taken over the maintenance fact the park strips, the we hold it was erroneous. by respondents in their brief point Y. most stressed the The growth of that the natural by in its decree is and the trial court a street at the Grand Avenue into business has converted the consequence in it, Flora Place meetsa point where practically tract is now worthless which Nicolaus if the re so it is asserted business site: and as a excePt strictive tract for and the agreement be enforced used wholly will be almost its value nothing purposes residential but 17 destroyed; by putting a church whereas, there the other property possibly hurt —unless those slightly. will not be next to it owners ’ respondents proposition boils words, In other down to this: that al- changed though wholly condition Avenue is out- Place, save as to the 1 side Flora Nicolaus Lot and another lot at intersection, although corner of the same the northwest all the (150 about) other lots in the area still are used for resi- restricted originally purposes contemplated as except dence five which are use, yet available that vacant but for enforcement the restric- disproportionate (the such hardship tions will work on them re- appellants’ 1 spondents) as the owners Lot bill should be and properly dismissed want of In equity. for this connection it should by appellant be stated the lot owned Linnie Bombauer is on same side the street and three lots from the removed 123 Nicolaus corner—about feet west of it. The two lots owned near appellants the other are the west end of Flora Place more away. than half mile
Bespondents’ quotes brief cites and from cases numerous decided jurisdictions. oidy shall them, We refer to they, a few of as many others, comprehensive are reviewed in 28 notes in S.) (N. 54 L. 812. R. A. A. L. R. will It be sufficient to lay propositions. down these equity enjoin general rule is will violation restric irrespective damage
tive covenants the amount of which would though result from breach even there be no substantial mone tary may damage. upon The covenantee stand his contract and the 208; law will Berry Restrictions, it. J. sec. 324, p. enforce C. [32 etc., 413, p. 555; 557, 571, Miller 177 Klein, App. sec. Mo. 562, 565; Co.,
S. W.
The Kenwood Land Co. v. Hancock Inv.
App.
Mo.
.No changed hard-and-fast rule can down when be laid as to restrictions, conditions have purpose defeated the but it can be *15 18
safely changes asserted the must be practically so radical as to destroy objects purposes the of agreement. essential Thus and the may an urban tract be dedicated to residential use under certain indicating an intention restrictions to establish a district secluded high-class It lapse time, for homes. that with inevitable the of shifting march' progress growth the and the and disintegration work, architecturally the forces will be at the houses and otherwise will more date, become more out of other resi- and still pretentious out, changes dential districts more bemay laid may about, crowd outside. But the parties must be deemed tó have anticipated things these to have intended to combat them as possible. so, And if necessity invoking far later changed restrictive arises the covenants mere fact that because of conditions the restrictions are less valuable than once were retains, prevent will not their if the. enforcement district still its. essential character and remain the restrictions of substantial value. Co.,
Pierce v. St. Louis Union 278 supra, Trust Mo. ease; W. respondents, was such and another decision cited Brewery v. Primas, Star Co. Ill. N. E. in- There, structive. owner certain land on which was a saloon part sold a vacant of the tract with restriction that no saloon operated object being should be thereon, prevent competi- A subsequent purchaser sought tion. to abate the restriction on the ground changed, that conditions had six had because other saloons up neighborhood. Supreme started in the Illinois Court held just the defendant’s saloon would make so much more competition plaintiff, for still the restriction was therefore use him, value to it. enforced change
If no radical in the condition restricted use occurs, changes the circumstances that there have been territory surrounding in the will area not of be covenanted itself destroy sufficient to the restrictions. Louis Union St. [Pierce Co., supra, seq., Trust Mo. l. c. 295 S. W. l. et c. But 408.] purpose this does not mean can the restrictions be defeated change only' physical usage protected some 'within in the Thus, district. for example, a tract restricted to use residential' might by manufacturing become surrounded establishments emit ting creating odors gases objectionable obnoxious otherwise totally conditions such as would render it unfit for use as resi although manufacturing section, enterprises dential causing changed actually conditions were within it. not located because, hand, that, On the changed other mere fact condi adjacent territory, so tions land restricted fesidéntial money will uses, signify sell not use for more does thé purpose has If the restrictions been defeated. continues be
19 reasonably contemplated use, used, and is fit tlie residential so for higher can at a freed price that it be sold of the the circumstance means each homeowner has a heavier simply investment restrictions Co., supra, v. St. Union Trust 311 in his Louis property. [Pierce 409; App. 426, l. c. Noel v. 158 Mo. 299, Hill, l. 278 S. W. Mo. c. 450, 364, 138 S. W. 371.] part district, is it a small of a restricted
Neither true that because thereof, at forced bear lying' edge the or the threshold is a expansion, brunt of from commercial the attack outside impaired by for the prescribed is in value the use restric result say, these not true that the restric tions—in circumstances we of hard part will be as to the so affected because the tions abated upon with ship compared visited land as shel particular the 172 Langan, App. portions [Thompson district. v. Mo. tered of the 813; Benzing 532, 154 219 Harmon, v. Mich. 83, 808, S. W. 64, very protect 189 N. W. of the restrictions purpose 69.] (Trustees in the the covenanted from such area invasions 365) Rep. ; 311, 319, 41 Am. College Thacher, v. 87 N. Y. Columbia if to the covenantees the restrictions are substantial value though injury to the servient equity may them, enforce serious result E. l. c. (Batchelor Hinkle, N. Y. N. supra, estate v. 631). l. c. changed differently operating
As to the effect of conditions on the complainants and it has been said that “the courts in defendants many character, go this seem to fur States, the United in cases of denying relief English than the courts in where there has been ther by taking change surrounding property, in a character comparative complainant benefit to and detri consideration the into resulting an of the to a from enforcement restric ment defendant prop owners of tion, regard without to whether the successive way responsible been in erty restriction have any affected 100, p. principal R. C. L. But change.” sec. for [14 400.] English and that followed America doctrine difference between the by injunc England will be enforced restrictive covenants is..that changed complainant pred his irrespective conditions if tion 28 L. A. for them. R. responsible not ecessors' title were [Sec. A, country In this while (N. S.) 707, note; 54 L. R. note.] granting from may deter courts change radical .in conditions a leading on yét survey sub injunctive' decisions relief, into complainant comes clearly think, that when ject show, will we any laches, guiltless charge waiver court with clean hands e made Covenants equity will restrictiv estoppel, enforce value, though even substantial land, his remain benefit if hardship will be visited on the changed conditions because p. 547; Restrictions, etc., [Berry sec. servient estate.
'20 212; Brown v. 328, p. Huber,
C. J. sec. Ohio St. 88 N. E. S.) (N. 705, 721, note, p. 28 R. A. 719. L. ] especially point respondents rely this on the On case of Trustees College Thacher, supra, 311, 317, of Columbia N. Y. 41 Am. ground cornering block of Rep. 365. There a on Fiftieth Street City Sixth in New York was restricted to residential use. Sixth Avenue became a business street and an elevated railroad therealong built with a station at that corner. The defendants four-story permitted dwelling brown stone house located on the station, same corner and overshadowed railroad tracks and *17 by to occupied be trade business establishments. The New grant injunctive Appeals relief, York of refused to Court but in doing applied expressly subsequent so invoked and the rule that when by performance agreement rendered of a events have restrictive impose great onerous as to make its hard defendant so enforcement yield upon plaintiff (italics him and Utile or no to ship benefit In ours), equity construing apply should its hand. withhold ing authority, in pointed the decision as an this latter fact is out a 34 case, 93, York v. N. N. Miller, 103, later New Rowland Y. College in nothing E. 767. see the Columbia case counter We that when covenants still afford the to the doctrine restrictive notwithstanding changed protection substantial condi covenantee neighborhood, equity will them. in the enforce tions eases, Johnson Respondents refer in their brief to two Missouri 423, 450, 63, 70-71, and Rys. Co., 227 Mo. S. W. v. United Wagner Mfg. Co., seq., 318 Mo. S. Newell v. Elec. et seq. (2d) 1072, 1084 et wherein was followed that W. the doctrine awarding denying injunctive equitable in or kindred relief by likely inconveniences to be incurred should “balance the court grant injunction, or with respective parties . . . And it, according discretion.” cite hold to a sound negative by holding in covenants authorities the enforcement junction compelling performance specific in amounts to effect governed by lodge dis to the same rules—which a them and is be 538, p. R. C. L. sec. in the chancellor. cretion [27 773.] respondents proposition. overlook one vital correct, is but This injunction depends rights granting an on the or refusal of When the law, general Johnson as in the and Newell parties under the minority sought enjoin to stockholders cases, supra, where certain action, chancellor has a wider discretion than where corporate by litigant a contract which a enforcement of as to the issue is admittedly instance—a situation often bound. In the latter is if general rule is that specific performance eases—the in presented by or other fair untainted fraud complete, the contract is made right. v. goes as a matter vice, specific performance [Beheret Balke, 306 824, 830; Kirby 144 W. 58, 77, 240 Mo. Myers, may always .be not This rule 120, 266 S. W. Mo. 708.] way relief can be awarded in hard cases where followed man permit law will not money it is the damages, but certain into, fairly covenants, entered repudiate his solemn restrictive inconvenient for changed render it more because conditions merely If the adversary a breach. to suffer perform him to than for his parties depended on the' convenience performance of contracts having need of them. there would be little restrictive proof of a beginning, complainant,
As stated impending of an for the benefit of his land and breach any injunction without to an defendant, thereof entitled damage. The defense showing that will suffer substantial he be injunctive relief should changed withheld because conditions defendant rests on the defense, burden is an and the affirmative a result (2) that as condition; (1) change in prove: the radical him; hardship on undue will work enforcement the restrictions [Berry plaintiff. (3) and will benefit be no substantial Restrictions, etc., p. sec. 328.] applying Now foregoing lengthy rather discussion of abstract propositions law, all way of which are raised one or another brief, respondents’ ques facts of this case. There is no tion but shows change the evidence marked conditions ’ Avenue, respondents and that1 1 seriously Lot affected *18 thereby. any change any But it does affecting not show such in or part except of the restricted area fronting the one other lot on controversy proven Grand Avenue. It stands without real throughout length, nearly its for a of mile, distance Flora Place quiet, orderly generally is still a and well maintained residential district.
The erection of a church would violate the restrictions. It has Presbyterian [Hisey so dissimilar. v. been decided facts not saj^ Church, App. 130 Mo. 109 S. W. Nor can we 60.] appellants are not of substantial value to the and restrictions Place, though opinion AA’asmuch other lot OAvners Flora there. contrary respondents’ Without evidence to the from witnesses. very they against trade, manu- are valuable as some kinds doubt enterprises facturing and and that otherwise business structures so, respondents’ simply contention might being in. That come they ought permitted build a church to be to to this—that amounts changed have made church, not because conditions because it is and argument The that a church owners. the covenants Amluelessto home high is harmless, purpose appeal- wholesome of influence and just change in condi- ing, good had been no but AA’ouldbe as if there against such parties The convenanted Avenue. tions would usage, and erect and maintain one violate the to structures Hisey case, cited, holds. last restrictions
Furthermore, even the erection and maintenance of a church’ on tendency 1Lot quiet would have a to invade the and seclusion of the would neighborhood, restricted be attended with some confusion might of foot' and vehicular traffic. And not'the relaxation of the justify restrictions and the of that edifice soon be claimed to apartment (as proposed) the erection of an house one witness at the that, intersection; might northwest corner same not turn, way open up the for encroachment still further district— into the respondents’ theory if law At least it is correct. can-be said consequential damages these considerations would make difficult justifies equitable estimation, which of itself intervention.' St. [ Dep. Kennett, Est., App. 370, L. v. 101 Mo. Safe & Sav. Bank 389. S. W. 480.] opinion injunctive appellants VI. In our the facts entitle relief, petition. prayed their but not the full measure of relief 1; they only not cover We have held restrictions cover Lot do (25) (2) twenty-five lot lot two north feet of three and the nearly (3). all dwelling house is present Nicolaus in' photographs evidence plats i0ts. The ia^er separate use in a part adapted 1 is on Lot not the small indicate was' built This residence conforming the restrictions. manner executed, covenants and the the restrictive before mainly buildings erected thereafter thereof are at directed to.be enforced, not are will be used. While restrictive covenants any lack clearness substantial in law and where there favored property. use of the in favor of the free doubt will be resolved R. A. 1918C Tyrol 200 W. L. Co., Inv. Mo. [Bolin 869.] directions with accordingly reversed and remanded The cause is its Louis to enter decree City of St. Circuit Court to the against injunction the re an granting appellants-plaintiffs plain prayer of the in accordance with spondents-defendants (4) (1) in block four Lot one covering1 said petition; tiffs’ but eighteen (2118) twenty-one Tyler hundred and in block Place the erection go agáinst, injunction to Louis, said St. *19 remodelling of the and use building any pres or the and use of new against restrictions, but not of the in violation ent than dwelling purposes house present of the Nicolaus use C., Ferguson, concurs. strictly private residence. C., Ellison, opinion foregoing PER CURIAM: The court, concur. judges' All adopted opinion the.