Reed v. Hazard

ELLISON, P. J.

This is a proceeding by injunction to restrain defendants from erecting on their real estate one or more small, one story business buildings, commonly known as store buildings. The injunction was granted, and defendants appealed.

The ground in controversy is in what is known as a residence restricted district of Kansas City, plain *549 tiffs residing on adjoining property. The tract is described as follows: “Beginning at the Northwest corner of 39th and Mercer streets in Kansas City; thence west along the north line of 39th street eighty-three feet and two inches; thence north paralled with Mercer street one hundred and thirty-eight feet; thence east'paralled with 39th street eighty-three feet and two inches to the west line of Mercer street; thence south along the west line of Mercer street one hundred and thirty-eight feet to the place of beginning.” Defendants became the owners of the ground through a chain of title, duly recorded containing the following restriction:

“And on the east eighty-three (83) feet two (2) inches of the above described premises there are not to be more than two dwellings erected on the south front and to cost not less than $2500 each, but other buildings may be erected on the east front of said last described premises.”

Notwithstanding one of defendants testified that they bought with their “eyes wide open” as to these restrictions, they began excavations for several one-story store buildings, facing on 39th street. They endeavor to maintain their right to do so by a construction we think unwarranted and in the face of what was evidently meant by the restriction. They insist that they are at liberty to build any character of building, fronting south on 39th street, but if they do build residences, there shall not be more than two; and neither shall cost less than $2500. We think the words that there are not to be more than two dwellings fronting on 39th street mean that- those are the character of buildings permitted to be built and that there must not be more than two of them. That it was the intention to exclude any other class,of buildings from the south front, is made manifest by the fact that other classes are provided for on the east front of the tract.

*550 The general subject of building restrictions on city property is discussed in a series of decisions by the St. Louis Court of Appeals. [Miller v. Klien, 177 Mo. App. 557 ; Spahr v. Cape, 143 Mo. App. 114 ; Kitchen v. Hawley, 150 Mo. App. 497 ; Godfrey v. Hampton, 148 Mo. App. 157 ; Fete v. Foerstal, 159 Mo. App. 75 ; Sanders v. Dixon, 114 Mo. App. 229 .] In the last of these cases it is said at page 252, 253 of the report, that4 4 We concede that in disposing of this question we must resolve any doubt in favor of the free use of the property. The law prefers that the use of land in any lawful mode shall be unhampered by restrictive covenants; and, therefore, courts decline to extend a stipulation limiting the use, beyond the clear meaning of the instrument when construed by the aid of the circumstances surrounding its execution. [Sonn v. Heilberg, 50 N. Y. Supp. 341 ; Hurley v. Brown, 60 N. Y. Supp. 816 .] But all courts profess to give effect to the plain intention of the parties in imposing such restrictions, and should live up to' their profession in good faith, instead of seeking ingenious subtleties of interpretation by which to evade restrictions.”

To the same effect is the third case.

In the first case it is held that persons, who, as the present plaintiffs, are restrained by like restrictions, are competent to maintain a bill for injunction against others who are violating such restrictions. That the covenants enure to their benefit. In the second case it was held that the mere fact that the property had become more suitable for business than- residence purpose, would not justify a court in annulling the covenants in the deeds. And this was repeated in Fete v. Foerstal, supra.

It will be observed that the ground in controversy is on a corner, and that it might therefore be said to front on both 39th and Mercer streets. But the expression in the restriction, 44 south front” on 39th street, for building purposes, necessarily includes the east *551 side on Mercer street, for the distance, at least, necessarily and in good faith, required for the accommodation of residences to be built thereon. And the remainder, on the east side, could be devoted to other character of buildings; and this was the view of the trial court.

"We thinlc the judgment should be affirmed.

All concur.