Bolin v. Tyrol Investment Co.

REYNOLDS, P. J. (after stating the facts).— This case was determined in the lower court entirely upon the question as to whether the erection of the proposed building was in violation of the restrictions covering the subdivision, and which we have set out, and which forbid the erection of more than one dwelling on each fifty-foot frontage of the lots in the subdivision. The points as to the change of the character of the neighborhood, the fact that the restrictions were to expire in December, 1920', and that the adjoin — 8 — ing property and the property on the opposite side of one of the streets running along the subdivision were free from restrictions and occupied by not only a cheap class of houses but by business and even manufacturing establishments and that there was a street car running along one of the streets adjoining the subdivision, were disregarded by the learned trial judge,-who ruled that testimony of that character, not relating to the subdivision itself, was immaterial. This ruling was. entirely correct and in accordance with what our court held in many cases, particularly in Spahr v. Cape, 143 Mo. App. 114, 122 S. W. 379; Noel v. Hill, 158 Mo. App. 426, 138 S. W. 364, and Thompson v. Langan, 172 Mo. App. 64, 154 S. W. 808, and other cases there referred to. Hence the point in decision here turns entirely upon the question as to whether the erection of this apartment house is in violation of the clause of the restrictions contained in the deed under which all the lot owners in this subdivision hold their property. That clause, to repeat, is, that no such owner “shall construct or allow to be constructed more than one such dwelling house on each fifty foot front of said lot,” “such dwelling” here referred to, as set out in the first restricting clause, being ‘ ‘ any dwelling house less than two stories in height,” or, as repeated in the third clause, “any dwelling to cost less than $4000' in cash. The learned trial judge relied in great part in the determination of this cause on what he understood to be the ruling of this court in Kitchen v. Hawley, supra, and learned counsel for respondent likewise lay great stress upon that decision as well as upon the decisions of our court in Sanders v. Dixon, 114 Mo. App. 229', 89' S. W. 577, and Thompson v. Langan, supra. Counsel seek to draw a distinction between the words “dwell- ' ing ’ ’ and ‘ ‘ dwelling house. ’ ’ Plainly the covenants are directed against the erection of more than a single building to be used as a single dwelling, on a single lot. — 9 — A flat or apartment house is not a single dwelling house, within the meaning of these covenants.. Referring to Kitchen v. Hawley, supra, an examination of the facts and of the point in decision in that case, shows that the erection of a hotel or hoarding house was contested on the ground that a hotel was not a dwelling house and that the restrictions prohibited the erection of any sort of a building other than a dwelling house. Our court, speaking through Judge Nortoni, said (1. c. 503): “We find no word in the deed, or so much of the context thereof as is set forth in the petition, which purports to inhibit the erection of a hotel building on the property in question. Indeed, it is implied from the fact that the general words of prohibition are omitted and only a few structures, together with certain enumerated occupancies pointedly inhiba ited, that the grantor intended to permit the erection of a hotel.” And again it is said (1. e. 506): “We are unable to discover anything from the context of the instrument as set forth in the petition indicating an intention on the part of the grantor to exclude a hotel any more than it indicates an intention to exclude a. house of worship or an institution of learning. ’ ’ That is the point of decision there and it in no manner whatever determines the question as to the number of dwellings which can be put on a single lot, that is, as to. whether more than one dwelling can be located upon one lot. In Sanders v. Dixon, supra, the restriction involved was, “No dwelling shall be erected on said realty whereof the main part is less than two stories in height, nor shall there be erected more than one dwelling on each lot.” Construing this clause, our court, speaking through judge Goode, held (1. c. 247): “The word ‘dwelling’ is one of multiple meanings; but the particular meaning intended to be expressed by it when used in a given instance, may be rendered obvious by the context or attendant circumstances; and usually re — 10 — sort must be had to those aids to interpretation to ascertain what is meant. In its broadest significance the word denotes a building used as a settled human abode; and, in common parlance, when not qualified, conveys the notion of a home; though a suite of rooms occupied by one man may be his dwelling house. ’ ’ After referring to and distinguishing the decision of the Supreme Court of Illinois in Hutchinson v. Ulrich, 145 Ill. 336, and refusing to follow that, Judge Goode refers approvingly to Gillis v. Bailey, 21 N. H. 149. In that case the covenant was that only one single dwelling house with sheds, etc., should in twenty years of the date of the conveyance be placed on the lot. The purchaser built a house two stories in height, designed to accommodate three families but fitted up and actually occupied by six families. The question for decision was the meaning of the phrase “a single dwelling house. ’ ’ That was decided in effect to mean a dwelling intended for and constructed for the use of one family. As the structure actually erected was held to be three separate, distinct residences or dwellings, the Supreme Court of New Hampshire held that its erection defeated the purposes of the covenant. Judge Goods adds, in commenting on this New Hampshire case, that “Weight was allowed to recitals in the deeds of conveyance going to show the grantors intended to prevent crowded buildings and to preserve open spaces about the residences.” Citing many other cases the conclusion reached by Judge Goode and concurred in by all of our court, was that the erection of the proposed flat or apartment house was in violation'of the restriction. In arriving at this conclusion, Judge Goode expresses the underlying reason fo.r holding a flat or apartment house in violation of the covenant against a single dwelling house in such apt words that we can do no better than quote them as found on page 252: “A house arranged for plural occupancy is much more likely to be used by several families, and to attract an unwelcome — 11 — class of inhabitants into a restricted residence district, than a honse arranged for single occupancy; and the former honse might be held a breach of a covenant against more than one dwelling on a lot, when the latter would not be.” In Pank v. Eaton, 115 Mo. App. 171, 89 S. W. 586, it is held, referring to Sanders v. Dixon, supra, that “the erection of a flat, two stories in height, planned for two families, one on first and one on the second floor, is ‘one house’ within the meaning of a restrictive covenant in the owner’s deed providing against the erection of ‘more than one house’ on each lot. ’ ’ In that case the restrictive clause differed from the one in Sanders v. Dixon and from the one before us, in that it provided that “not more than one honse” should be erected on each forty foot frontage. The distinction between Pank v. Eaton and Sanders v. Dixon, supra, rested upon these words. It is. there said by Judge Goode, who also wrote that opinion, that the restriction in Sanders v. Dixon was ‘ ‘ against more than one dwelling on a lot. . . . Such a covenant deals with the use of the premises and is intended mainly, to prevent plural occupancy of a lot; whereas the present covenant is not. . . . The purpose to be derived from the words employed was to prevent the erection of more than one house on each lot. In our opinion a building of the sort described is one house and not two.” Referring to Harris v. Roraback, 100 N. W. 391, a decision by the Supreme Court of Michigan, Judge Goode states that “the covenant therein dealt with was against more than one dwelling house, on a lot, and it was held that each story of a two-story flat constituted a dwelling or a dwelling house. But manifestly the covenant in that case was designed to prohibit the occupancy of the lot by more than one family as a place of residence. ... If the grantor desired to restrict the use of a single lot for dwelling purposes to a single family, apt words for that purpose could have — 12 — been used. No intention of the kind can be drawn, with any confidence, from a covenant against more than one house.” Thus, the distinction is clearly pointed out between Sanders v. Dixon, supra, and the case before the court in Pank v. Eaton, to rest on the fact that in Sanders v. Dixon the words were ‘ ‘ a dwelling house or dwelling,” “more than one dwelling on a lot,” whereas in Pank v. Eaton the restriction was against “more than one house.” In Thompson v. Langan, supra, we considered all these cases and the point in decision there wa-s that a hotel or flats proposed to be erected violated the restriction in the deed against the erection of more than one dwelling on each fifty-foot lot. There we held that an apartment house or flat is not a dwelling house, meaning by that it is not a single dwelling, and that the erection of flats within the boundaries of Hamilton Place, the subdivision in question there, was in violation of the covenant which provided that no more than one dwelling should be erected on each fifty foot of the subdivision, inasmuch as the flat or apartment house proposed to be erected was composed of, constituted several dwellings. Looking outside the decisions of our own court, we find in Brigham v. Mulock Co., 74 N. J. Eq. Rep. 286, a decision by the Court of Chancery of New Jersey, that it is held (1. c. 291), that the covenant forbiding more than one building for a dwelling house to be erected upon each lot, is broken by the erection of what is commonly known as a double house, that is two houses under one roof. Says Vice-Chancellor Learning, who wrote the opinion, “such a structure is as much two buildings for dwelling house purposes as though separate roofs existed.” In Schadt v. Brill, 139 N. W. 878, the Supreme Court of Michigan held that a building restriction prohibiting the erection of any store, factory or building other than a “dwelling house,” with usual appurte — 13 — nances, and declaring that no dwelling house ‘ ‘ shall be erected at a cost of less than $5000';” and that such “dwelling house” shall not be less than two and a half stories high, etc., prohibits the erection of a double house with one entrance; a “dwelling house” meaning a house constructed for the dwelling of a single family. The same question was before that court in Harris v. Roraback, supra, as noted by Judge Goode in the Park case, supra. "While the tendency of the courts is to discourage restrictions on the free alienation of property, it is also well settled that deeds and other instruments affecting title to land, like all contracts, are to be interpreted, as nearly as possible, according to the obvious intent of the parties contracting. It stands uncontradicted in this case that the respondent bought with full notice of the restrictive clauses in .these deeds. It is not pretended that it was in any manner imposed upon or misled. The conduct of its officers shows that they were so far doubtful of their right to proceed that they stopped at the inception of the enterprise and very properly left the question to be determined by the courts before proceeding further. The evidence in the case shows that with the single exception of the hotel or boarding house, which was permitted by the decision of our court in Kitchen v. Hawley, supra, the whole of this Chamberlain Park subdivision is occupied exclusively by private residences, single dwelling houses, each building in the occupancy of one family. However sightly, expensive and handsome the proposed apartment house may be, its erection would be a plain violation of the idea running through the deeds setting off this place, by which it was intended to be made a place of private Residence for the occupancy of private families, each dwelling in their own home and under tbeir own roof tree. "Duplex houses, apartment houses, flats, are — 14 — clearly not a single dwelling house within the' letter or spirit or intention of these deeds. The prevailing idea to be gathered from these restrictive covenants is, . that when a dwelling is to be built, it is to be a single dwelling — a single dwelling house, not, as in Pank v. Eaton, supra, “one house.” In the case before us the words are “any dwelling house;” “one such dwelling;” “a dwelling;” “such dwelling.” Always in the singular. The point is made by counsel for respondent that there is a difference in meaning between the word “dwelling” and the word “dwelling house.” We recognize no such difference. On this ground and in the light of the decisions of our court and of other courts which have considered the matter, we conclude that the erection of the proposed sextuple building, flats or apartments would be in violation of the restrictions in the deed under which respondent holds title to its lot. The circuit court, under the evidence in the case should have awarded the, injunction. Its dismissal of the suit whs error. Its judgment to that effect is reversed and the cause remanded with directions to the circuit court of the city of St. Louis to enter up a judgment in favor of plaintiff and award the injunction as prayed for against the erection of the proposed building. Nortoni, J., concurs; Allen, J., dissents.