Spahr v. Cape
122 S.W. 379
Mo. Ct. App.
1909
Check Treatment
REYNOLDS, P. J.

(after stating the facts).— Oases involving the question of infringement and en-, forcement of restrictions on the use and occupation of lots and tracts of land, particularly in and adjoining the city of St. Louis, have been before this court and have been so carefully considered and the law relating thereto so clearly stated and settled that it is not necessary to undertake any extensive discussion of the principles underlying this class of cases.

In Hall v. Wesster, 7 Mo. App. 56, decided in 1879, in a carefully considered opinion, delivered by Judge Bakewell, this court announced the rule to be (1. c. 60), “that a party will not be permitted to use land in a manner inconsistent with the contract entered into with his vendor, and with notice of which he purchased. And if the right at law under the covenant is clearly established, and the breach is clear, and the covenant one that can be specifically enforced, the courts will not, unless under exceptional circumstances, take into consideration the comparative injury to the parties from granting or withholding the injunction.” The court further said (1. c. 61), that the action in such case “is based upon the mere fact that there has been a breach of covenant; that the plaintiff had a right to enjoy his property in the manner and *125form provided by tbe stipulation in his deed and in that of the defendant, and that he has a right to judge whether the agreement shall be preserved or whether he will permit it to be violated.” Calling attention to the fact that there are cases in which there has been no appreciable or substantial damage, in which an injunction will be refused, the court holds (1. c. 62): “Where all the purchasers of an estate are bound by restrictive covenants not to use their houses for certain purposes, an injunction will be granted to restrain a breach of the covenant, without any regard to the question of the character or degree of annoyance. The objection may be founded on the merest whim.”

In Coughlin et al. v. Barker, 46 Mo. App. 54, a decision rendered in 1891 and in which full consideration to questions involved in cases of this character was given by Judge Seymour D. Thompson, the distinction between covenants running with the land, and those personal to the parties, is gone into and the conclusion of the court is, that if the owner of several adjoining lots conveys one of them with a restriction as to the manner of building thereon and subsequently conveys another, if said restriction was intended for the benefit of the last mentioned lot and not merely as a covenant for the benefit of such owner personally, the grantee of such last mentioned lots, and his assigns, can enforce such restriction against every one of the grantees of the first mentioned lot, acquiring title under or through such conveyance, and taking with notice, actual or constructive, of the restriction, and that the absence of a specific restriction in the deeds, or of an express intention that they are made for the benefit of the adjoining land, is an evidentiary circumstance tending to show that the restriction was intended by the grantor of the lot for his own benefit personally and not for the benefit of the adjoining land; that whether the easement is a personal right, or one pertinent- to the land, is generally to be determined by a fair in*126terpretation of the grant or reservation creating it, aided, if necessary, by. reference to the situation of the property and the surrounding circumstances. It was further held in that case, that the terms of the conveyance, when construed with reference to extrinsic circumstances, did not establish the necessary intention, but only established such intention conditionally.

In St. Louis Safe Deposit Bank v. Kennett’s Est., etc., 101 Mo. App. 370, Judge Goode, in a thoroughly considered opinion, held, all the members of the court concurring, that a party may restrain a continuous breach which is beneficial to him and stand on the very letter of his obligation, for a party cannot make a solemn obligation and then disregard it on the plea, that no harm will result to the other party, the court further holding, in that case, that the mere failure to object at the time to a violation of the covenants and restrictions as to building, contained in the deeds of the parties, was not such' acquiescence as estopped the plaintiff from subsequently suing to enjoin the continuance of the violation of the restriction. In that case, this court, following Hall v. Wesster, supra, in our State, and many cases from other jurisdictions, further held, that while the extent of the injury is vital, when a nuisance, unrelated to contractual rights, is the gravamen of the action, if parties settle their rights in regard to a parcel of land by covenants, these must be observed, whether their non-observance will inflict injury or not, the plaintiff having the right to restrain-, even a continuous breach which is beneficial to him, and to stand on the very letter of his obligation, “for a party may not make a solemn engagement and then disregard it on the plea that no harm will result to the other party.”

In Saunders v. Dixon, 114 Mo. App. 229, the same question of building restrictions came before this court, and Judge Goode again speaking for the court, repeated that where covenants containing the restric*127tions inured to the benefit of tbe complainant and were broken in a substantial way by the defendant, it was unnecessary to show that damage resulted from tbe breach. That was a case ip wbicb tbe covenant was against tbe erection of more than one dwelling bouse on tbe same lot. Referring to St. Louis Safe Deposit Bank v. Kennett’s Est., supra, Judge Goode said, that while tbe courts have some discretion in granting an Injunction respecting restrictive covenants affecting tbe use of lands, “they are disposed to uphold such restrictions according to their true meaning and this court is strongly of that disposition.”

In Semple v. Schwarz, 180 Mo. App. 65, Judge Bland delivering tbe opinion for the court, and with tbe concurrence of all the court, held that tbe fact that tbe evidence showing that different restrictions were imposed in tbe conveyances of lots in another addition adjoining, laid off and conveyed by tbe same grantor, were inadmissible. In that case it was also held that tbe fact that tbe defendants bad set apart a room in their residence for tbe express purpose of receiving patients, and that the defendant physician bad let bis patients know that they might call upon him there professionally between certain hours and that be bad advertised this particular room as bis office by tacking bis professional card on tbe door, constituted tbe “doing of business,” in violation of tbe covenant against doing business or carrying on business in ■ a bouse erected on tbe lot, and tbe court enjoined the continuance of that use of any part of tbe premises.

Applying tbe principles in these cases to tbe facts in evidence in the case at bar, it appears in tbe first place that tbe defendant Gape bad notice and knowledge of tbe restrictions; that be bought subject to them; that tbe proposed construction of a building in wbicb a professional office or drugstore could be conducted, was in tbe mind of tbe defendant in tbe erection of tbe *128proposed building; and that the covenants covered all of the property and were common in the deeds of all the grantees, is • very clear, and that these covenants inured to the benefit of all purchasers in the addition is also evident.

The argument that the parties laying off the Maplewood addition, or the originator of the scheme for the Maplewood addition had abandoned or modified the original scheme, and that that scheme had been “determined, abrogated, changed or annulled by the acquiescence and conduct of the owners and grantors of said subdivision,” does not bring this case within the Coughlin Case. In the case at bar, the original covenants as to improvements affected all the lots covered by them. It was beyond the power of the originators of the scheme or owners of other lots to change them without the consent of all who had purchased under those covenants, those covenants, at the time of the purchase by plaintiffs of these lots, covering and being in force upon the lots purchased and plaintiffs not being of those who had assented to any change or release of the covenants.

Our attention is specifically called by one of the learned counsel for the appellants to the cases of Trustees of Columbia College v. Thacher, 87 N. Y. 311; Jackson v. Stevenson, 156 Mass. 496; Parker v. Nightingale, 6 Allen (Mass.) 341, as controlling under the facts in this case. In the Columbia College Case it was held that the new conditions had so entirely and completely changed the situation, these conditions, being the election of the structure for and operation of an elevated railway in front of the premises, as to render the restrictions no longer serviceable. In the Jackson Case, at the time of the establishment of the restrictions, the neighborhood was intended to be and was used as a residence district; and in the Parker Case it is held that circumstances may exist which *129would warrant a refusal to grant equitable relief, even when it was made to appear that there had been a failure to use and occupy the premises in accordance with the terms of the deed by which they were conveyed. These cases have all been before our court, in one or more of the cases before referred to, . on different branches of them to be sure, but they are not cases with which this court is unfamiliar. An examination of them shows that they are not applicable to the case at bar. It appears that when Maplewood subdivision was laid out, the railroad did not extend to or through it, although the plat in evidence shows the road, a surface road, operated by electricity, as running through it and forming a loop through the block immediately west of the block in which these lots are situated. The cars run around this loop. All that the evidence tends to show is that the property adjoining this loop, as do the lots here involved, is more valuable for business than for residence purposes. It does not convince us that it has become unsuitable for residence purposes, and so does not- come within the three cases cited. The mere fact that it is more valuable or suitable for the one purpose than the other is not enough to justify a court in overturning and nullifying the solemn covenants in the deeds. Nor is it true that the mere presence of a street railway along a street turns that street from a residence into a business thoroughfare. In brief, it does not strike us that the conditions developed by the testimony bring this case within the exceptions noted in the three cases relied upon by counsel. Neither do we think there is any violation of any principle of equity, on the facts in this case, in holding the parties to their own deliberately made and accepted covenants. Nor is there such a state of facts in this case as raise an estoppel against plaintiffs. Citing and *130quoting Bales v. Perry, 51 Mo. 449, our Supreme Court, in Harrison v. McReynolds, 183 Mo. 533, 1. c. 550, said: “Though silence in some cases will estop a party from speaking afterwards, yet ‘it is only when it becomes a fraud that it postpones.’ If, therefore, the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel.” In the case at bar, the acts relied on as estoppels did not go even far enough to make a resort to this rule necessary. There were no acts proven, that, by any application of the rule of estoppel, can be said to have constituted an estoppel. On consideration of the evidence in the case and of the law as laid down by this court and enforced in the cases referred to, our conclusion is that the case was rightly determined* In entering up the decree, however, the injunction is made to cover all of lots 1, 2 and 3, whereas the evidence shows, and the trial court found, that appellant is owner, not of all of these lots, but of the western fifty feet thereof. Evidently that is a mere inadvertence in entering up the decree, possibly a clerical error, as the court distinctly found as a fact that appellant Cape was owner of only the western fifty feet of the lots. Accordingly the decree is modified so as to extend the injunction over the western fifty feet of lots 1, 2 and 3, of block 4, and as so modified it is affirmed.

All concur.