127 Mo. App. 433 | Mo. Ct. App. | 1907
The suit is in equity and invokes the process of injunction. Plaintiffs seek to enjoin the defendant from erecting an addition to his residence in violation of an alleged building restriction contained in the deed. The circuit court, after hearing the evidence, dismissed the bill and plaintiffs appeal.
The material facts with respect to the controversy are: about 1886, one Virginia S. Peugnet owned a tract of land in city block 1383, city of St. Louis, extending along and fronting upon the east side of Jefferson avenue from Shenandoah avenue on the south, northward six hundred and one feet and six inches; and desiring
The defendant in this case purchased, in 1902, and now owns and occupies as a residence, the Cora Van Dam property above mentioned. In the summer of 1.906, defendant commenced the erection of an addition to his said residence, extending the same about ten feet forward, toward the street, with the purpose of occupying the same as a butcher shop' and grocery store. The several property-owners in the block facing on Jefferson avenue, after having called his attention to the covenant in the deed, forbidding any building nearer than twenty-five feet to the street line, requested and demanded that he desist from erecting such addition, and upon the defendant declining to do so, they have joined as plaintiffs in this proceeding by injunction. The injunction -is sought on the grounds that the ten-foot addition being erected by the defendant in front of his said' residence, is a violation of the covenants in his and plaintiffs’ deeds. There is no question in this case as to whether or not the covenants in the deed inure to the benefit of the several lot owners in the block, nor will we concern
1. The law favors the free and untrammelled use of real property. Restrictions in conveyances of the fee are regarded unfavorably and are therefore strictly construed. [Hutchinson v. Ulrich, 145 Ill. 336; Eckhart v. Irons, 128 Ill. 568-581; 6 Amer. & Eng. Ency. Law (2 Ed.), 513.] Nevertheless, proper building restrictions and other limitations on the use of property of a character which the law permits to be attached to land, in such a sense as to restrict the use .of one parcel thereof in favor of another, will be enforced in a proper case in courts of equity upon equitable grounds in favor of or against the party designed to be benefited or burdened thereby. [5 Amer. & Eng. Ency. Law (2 Ed.), 9; Coughlin v. Barker, 46 Mo. App. 54; Sanders v. Dixon, 114 Mo. App. 229, 89 S. W. 577; Compton Hill Imp. Co. v. Tower, 158 Mo. 282, 59 S. W. 239; Hall v. Wesster, 7 Mo. App. 56.]
There are numerous instances, however, where the courts refuse on equitable grounds to enforce such restrictions, for in all cases where specific performance is sought in equity, the matter rests largely in the discretion of the chancellor and in no case should the relief prayed for be given, when, under the circumstances, the giving of such relief would violate other familiar principles of equity jurisprudence. [Columbia College v. Thacher, 87 N. Y. 311-317; 2 Story, Eq. Juris., sec. 750; 5 Amer. & Eng. Ency. Law (2 Ed.), 15.] Among the equitable grounds upon which the courts have' declined to interfere by injunction in this class of cases, are abandonment and acquiescence, brought about or participated in by those who are seeking to enforce the covenant. It seems the facts of this case place it within the influence of each and both of the principles last above referred to. Now it is a well-established rule in equity jurisprudence that a court will not lend its aid
The learned trial judge very properly refused the injunction. If we give effect to the equitable principles above mentioned, the judgment must be affirmed. If there could be such a thing as a complete case of abandonment with respect to a restriction which was originally intended to play a part in the improvement and. upbuilding of a property, we have it here. According
The judgment is for the right party and should be affirmed. It i,s so ordered.