268 Mo. 680 | Mo. | 1916
— This is a suit in equity brought in the circuit court of Jackson County at Kansas City to enjoin defendants from erecting a building on a lot in McKinney Heights in said city. »
A restraining order was granted and later dissolved. After its dissolution and before the trial, defendants erected a building on said lot. In September, 1912, a trial was had resulting in a judgment for plaintiffs, requiring defendants, within ninety days thereafter, to remove so much of said building as projected over the building line on the
In June, 1886, Marshall P. Wright owned a tract of land of tbirtv-one acres adjacent to the corporate limits of Kansas City. . He laid it out in lots and blocks and streets and alleys, dedicating the latter to public use, acknowledged the plat and recorded the same, as required by the statute, designating the addition as “McKinney Heights.” In 1897 it was made a part of Kansas City.
Across tbe lots and blocks on this plat, twenty feet from the street lines and parallel thereto— except along St. John Avenue, where the distance is fifteen feet — checked or broken lines were drawn designated as “building lines.” Defendants’ lot, described as “lot 14 of block 4, McKinney Heights,” against which this particular proceeding is directed, is situated on the northwest corner of Jackson and St. John Avenues, the former running north and south and the latter east and west. The lot has a frontage of fifty feet on St. John Avenue.
Plaintiffs’ lots are in the same block as that of defendants, also fronting on St. John Avenue.'Plaintiffs contend that the lines on this plat marked “building lines” are restrictions upon all persons erecting buildings upon any of these lots, and that the action of the defendants in violating same is to plaintiffs’ damage and injury in that it tends to' depreciate the value of their property and interferes with the uniformity of the location of buildings on said tract or addition, which was in
Defendants, in opposition to this plea, contend that at the time this plat was made and recorded the land platted was outside of the corporate limits of Kansas City and the building lines marked thereon were in no wise mentioned except by marking them on the plat; that neither the acknowledgment to the plat nor any deed conveying the lots therein designated has any reference to same, and that these lines constitute merely a suggestion to owners of property in said addition.and have no binding force or effect as a restriction; that they acquired possession of the lot against which this proceeding is directed without' any knowledge of the pretended claims or demands of plaintiffs that there was a building line restriction on the property, and that they purchased the same believing it to be unrestricted and unincumbered in any manner; that the enforcement of the restriction would constitute a taking of their property without due process of law. The reply admitted that McKinney Heights when platted was not in the corporate limits of. any city or town and that the defendants’ title was through mesne conveyances under Wright, who platted the property, but denied all the other allegations in the answer.
In July, 1886, soon after recording the plat, Marshall P. Wright and wife conveyed the entire addition to William McKinney, describing it as follows: “All lots in McKinney Heights, being originally the L. P. Browne tract, consisting of thirty-one acres in the east end of the south half of the northeast quarter of section 34, township 50, range 33, Jackson County; Missouri. The plat of said McKinney Heights being recorded in book B, page-, June 17, 1886, to which further reference is, hereby made. ’ ’
January 28, 1887, Thomas A. Harris and wife conveyed the addition to Calvert R. Hunt, describing it as follows: “All of McKinney Heights, an addition to the City of Kansas, as the same is marked and designated on the plat filed in the office of the recorder of deeds for the county of Jackson, State of. Missouri [except certain lots therein named].” At different times subsequent to the conveyance to Hunt deeds were made to different persons to lots in this addition.
McKinney Heights was a residence district before the erection of the building by defendants, and at the time of the trial there were 95 buildings on the addition, including that of defendants, 82 of which conformed to the building lines, the remaining 13 having been built in disregard of same. There was testimony in detail as to the conditions under which the different buildings were erected so far as concerned the builders’ knowledge and observance of the building lines, tending to show, in the majority of cases, that when notified of the restriction parties complied with same. It was also shown that plaintiffs in no case expressly acquiesced in any violations of the restriction, but when notified protested against same.
The owner, Wright, who subdivided the property and recorded a plat of same, may have had such a purpose in contemplation in designating certain lines on the plat as building lines; but this purpose was never consummated. Aside from the absence from the plat of any other reference to this proposed restriction, there is nothing in the conveyance made by him of the entire tract to indicate' such a purpose. It is true the description of the property contains a reference to same as subdivided, adding, as regards the plat, “to which further reference is hereby made. ’ ’ The two subsequent transfers of the entire addition are no more definite and the later transfers of particular lots, except in one instance, bear no reference to any restricted use. The excepted instance referred to is not determinative of the matter at issue; it is simply a recognition in one of the transfers of a single lot of the existence of a restriction. At best the references in these deeds to the plat are matters of description, and if otherwise intended, at least some definite indication of the grantor’s purpose should appear, especially in the conveyance made by Wright in the first transfer of the entire property after its subdivision.
As a general proposition a plat of land shown I to be correct and properly recorded becomes a part/ of subsequent deeds to same. [Lindsay v. Smith, 178 Mo. App. l. c. 193.] This ruling, however, has reference, unless there are other limitations, to the location or description of the property (Ferguson v. Dent, 8 Mo. 667; Dryden v. Holmes, 9 Mo. 134), and so far as our investigation has led us, a mere, designated line drawn upon a map or plat of proper^ ty, without more, will not suffice to' create a covel nant.
A covenant, however, is not a necessary part of a plat but is dependent for its creation on the will of the owner of the property subdivided. That will cannot, by reason of the very nature of a covenant, be declared by a designated line and nothing more. It must be expressed in words, either definitely defining the covenant or making apt reference to the designated line, thus giving formal expression to the covenantor’s purpose. [13 Cyc. 713, and notes.]
This conclusion is sustained by an almost unbroken line of cases, if not by express rulings by the facts themselves • showing on the face of the instruments affecting the property, either in express words or by clear implication, a purpose to create a restriction. [King v. Union Trust Co., 226 Mo. l. c. 367; Scharer v. Pantler, 127 Mo., App. 433; Hisey v. Church, 130 Mo. App. 566; Kitchen v. Hawley, 150
An exception to this rule is found in Simpson v. Mikkelsen, 196 Ill. 575, which we decline to follow in the presence, especially in our own jurisdiction, of a strong current of authority to the contrary. The reason for the ruling of the majority is evident. A restrictive covenant lessens the fee and is not favored in law. It should, therefore, be made manifest in no uncertain manner and not he left entirely to implication, as in this case. It has been expressly ruled elsewhere, and is in accord with our reasoning, that a covenant not to use property except in a certain way will not he inferred from the absence of words of restriction. [Madore’s Appeal, 129 Pa. St. 15.]
In the presence of the concrete facts, in the instant case, these general deductions are authorized: that to create the limitation on the fee herein contended for, a covenant must have been created; and it is not material whether it be termed an equitable easement, as in King v. Union Trust Co., supra, or a servitude or a restricted covenant. If express, it must he in writing, i. e., declared in so many words (Fuhr v. Dean, 26 Mo. l. c. 119; Petty v. Church of Christ, 70 Ind. l. c. 297); if implied (and here also note the necessity of the use of words by the covenantor), the implication from the words used must he such as will clearly authorize the inference or imputation in law of the creation of the covenant. The only exception to this rule is in the case of implied covenants, classified as covenants in law, or those which the law implies or intends from the nature of the transaction although not given form in words in the instrument containing them. Thus in conveyances in fee containing the words “grant, bargain and sell,” a covenant of warranty
But no such rule exists in regard to covenants carrying a restriction. These, for the reasons stated, must be defined. This has not been done; and while the tendency of the courts is to disregard restrictive covenants, we would be inclined to sustain the plaintiffs’ contention if the facts showed that by so doing the intent of the original grantor would thereby be effected. But we do not so interpret the evidence. We therefore decline, on the proof alone of a designated line appearing on the plat, to read into the conveyances of the property subdivided an express restriction, the effect of which would be to limit the use of and lessen the tenure by which the owners hold these lots.
From the foregoing it follows that the judgment below should be reversed and the case remanded with directions to the trial court to dismiss plaintiffs’ action and to enter judgment for the defendants, and it is so ordered.