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3. Prohibition 10(2)-Directing taking of lots for schoolhouse without compensation for easement there in excess of jurisdiction.

matory. It really appears from the size of | in condemnation of some of other lots for a the verdict, that the jury was not inflamed schoolhouse must be compensated for under by the argument, but followed the admoni- Const. art. 2, § 21. tions of the learned trial judge to ignore such arguments. The trial court cured the trouble promptly, where it could be cured, and what impressions that might have been left do not seem to have hurt the defendant. We do not condone the method of the arguments made in the case, but do not believe that the record, on this matter, when taken as a whole, shows reversible error. Had the verdict been largely excessive we might have had a more serious question on this subject.

[11] Another contention is that counsel for plaintiff, in his closing argument, read from a medical book. It appears that the trial court left his seat for a few moments, and this was done in his absence. The judge returned just as defendant's counsel were objecting, and promptly stopped plaintiff's counsel, telling him that he had no right to read from the book, as they had not been introduced in evidence. The further facts show that counsel for plaintiff in the course of cross-examining the doctors for defendant, had used several medical works, and in cross-examining Dr. Morrow, a witness for the defense, got him to admit that a certain quotation from one of those books was correct doctrine, and to say that he would adopt such expression as his own views on the subject. It was this excerpt that counsel had read when the court admonished him to read no further. The facts all considered, we do not feel that the verdict should be disturbed for this conduct of counsel.

Finding no substantial or prejudicial error in the trial of the case, the judgment is affirmed.

All concur.

(288 Mo. 618)

PETERS et al. v. BUCKNER, Judge, et al.
STATE ex rel. MEADOW PARK LAND CO.

v. BUCKNER, Judge.

(Nos. 22649, 22650.)

(Supreme Court of Missouri, in Banc. July 8, 1921.)

1. Covenants 51(1) — Building restrictions held to create an easement in each lot of an addition in favor of every other lot.

Covenants and agreements in deeds of lots in an addition imposing building restrictions on all the lots creates an easement in each lot in favor of every other lot.

2. Eminent domain 85 - Compensation required for easement of building restrictions. The easement which a lot has in other lots of the addition by reason of covenants and agreements in deeds restricting building in the addition to dwellings is a property right which

For the court in condemnation of lots for a schoolhouse to direct the commissioners to assess no damages for the easements therein in favor of other lots in the addition, by reason of the restriction against building anything but dwellings, is not a mere error, but an excess of jurisdiction under Const. art. 2, § 21, to be controlled by prohibition.

Higbee, J., dissenting.

Application for writ of prohibition by Edna Peters and another against Thomas B. Buckner, Judge, and others, and application by the State, on the relation of the Meadow Park Land Company, for writ of mandamus Writs against Thomas B. Buckner, Judge. made permanent.

These two cases were argued and submitted to this court as one case, and for that reason we will write the opinion as though only one case was here. The facts are undisputed, as shown by statements of counsel, and are as follows:

The controlling facts and the applicable legal principles in these two cases being so nearly identical, it appears to us that by considering them together as practically one case the time and labors of the court, as well as counsel, will be conserved, and accordingly we shall do so.

The object and purpose of each of these suits is to control the judicial conduct of Judge Buckner of our Jackson circuit court and of his condemnation commissioners, whom he appointed to assess damages accruing to property owners in a certain condemnation case to the extent of requiring them to consider of and determine the amount of plaintiffs' damage by reason of the taking of their property for public use.

the school district of Kansas City, and the
The plaintiff in the condemnation case is
defendants, among whom are the plaintiffs
at bar, are all of the owners of lots in Mead-
ow Park addition in that city, and the school
district is seeking to condemn and appropri-
ate blocks 3 and 4 in that addition for public
use as a schoolhouse site. The addition was
platted in January, 1910, and is half a mile
long east and west and one-fourth of a mile
wide north and south, and Meyer boulevard,
one of the prominent boulevards of the city,
it being 140 feet in width and about 21⁄2
miles long, runs east and west
west through
the middle of the addition and into Swope
Park at its easterly terminus. The proposed
schoolhouse site, blocks 3 and 4, comprise a
tract of about 10 acres which fronts south
on the Meyer boulevard and east on the
Morning Side Drive boulevard, and occupies

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

The exact terms of the restrictive covenants are as here set out; and there is no dispute about them, for they are recited in the condemnation petition, and in each of the petitions for these writs, and consequently are admitted by all parties, and they are embodied in each and every deed from the Meadow Park Land Company to its grantees, the Peters, as well as every other lot owning defendant in the condemnation case, immediately following the granting clause in such deeds, and they are as follows:

"Restrictions and Agreements.

the most elevated, commanding, and beautiful of blocks 3 and 4 in said addition as and for location in the entire addition, and indeed of a site for a schoolhouse in accordance with the the entire neighborhood. Each and every lot petition herein." in that addition is impressed with a certain use, with an easement, or, more specifically, a negative easement, which was created and is evidenced by certain "restrictions and agreements," contained in the title deeds of each and every lot holder except those lots not yet sold, but now owned by the original owner, Meadow Park Land Company. That company is the common source of title, and it established and promulgated the plan and purpose of these restrictive covenants and agreed with all purchasers in the addition and owners of adjacent land to embody the same covenants in the title to every lot in the addition, except a slight area, which is not material here, and both express and implied covenants and restrictions exist between it (the Meadow Park Land Company) and each and all the purchasers and grantees of it of lots in said addition, and also by an express contract between it and the owners of adjacent lands to the effect that the same covenants and restrictions herein set out shall be incorporated in the title and enforced as to each and every lot in said Meadow Park addition, whether they be owned by it, the Meadow Park Land Company, or its grantees, And as to this the express language of the answer of the Meadow Park Land Company in the said condemnation case, which allegations are set out in the petitions for these writs and are therefore admitted by the defendants in the case at bar by reason of their demurrers to the petitions for these writs, is

to this effect:

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"Subject, however, to the following restrictions and agreements: And the second party, grantee herein, for himself and for all persons claiming under him, her or them agrees as follows, viz.:

"First. That no building shall be erected on said lot other than a residence and usual appurtenant outbuilding for use in connection with said residence, and that said lot shall be used only for residence purposes; further, that no flat building or apartment building shall be erected upon said property. Said lot shall not be sold to or occupied by negroes.

"Second. That only one residence shall be erected or rebuilt in case of destruction and maintained on said lot; that no 'residence shall be erected thereon which shall cost and be reasonably worth less than $3,500.

"Third. That at no point shall any part of be nearer than 25 feet of the front street line such residence building (inclusive of porches) of said lot, and no stable, barn, or other outbuildings shall be erected on said lot elsewhere "Defendant further says that on or about than on the rear thereof, and, if a corner lot, January, 1910, it entered into a written agree-nearest to the side line farthest from the latment with the owners of the 80-acre tract of eral street. land lying immediately south of and adjoining the 80-acre tract comprising Meadow Park addition, whereby it was mutually covenanted and agreed between them that each of said tracts should be restricted to residence uses by covenants and restrictions substantially like those set out in the petition for a term of 25 years from January 1, 1910; and this defendant (Meadow Park Land Company) says that at all times since the platting of said Meadow Park addition it has represented and advertised to all purchasers and to the public in general that all of the lots and tracts of land in said Meadow Park addition will be used and devoted to residence purposes, and will be conveyed and held subject to the covenants and restrictions set out in the petition (the condemnation petition) herein.

"Defendant says that by reason of the character the property, comprising the lands in Meadow Park addition, has acquired by reason of the fixed purpose and policy of the owners of that and surrounding lands to devote it to residential uses in accordance with the covenants and restrictions herein referred to, it has acquired a great and substantial value, and that such value will be greatly depreciated and lessened by the taking and appropriation and use

232 S.W.-65

"Fourth. These restrictions and agreements shall be binding and effective for a term of 25 years from January 1, 1910, upon the grantee or grantees herein and all persons claiming under such grantee or grantees, and are made for the use and benefit of the grantor herein and its past or future grantees of other lands in said Meadow Park addition and all persons claiming under them or any of them, and, in case of breach or threatened breach of any restriction or agreement contained, the grantor herein, or any person or persons holding or owning any interest in any other lands in said addition, shall be entitled from time to time to sue for and obtain an injunction prohibitive and mandatory or either as may be sued for, to prevent such breach or to enforce the performance and observance of such restrictions and agreements and each of them and to compel and restrict the use of such premises as herein agreed to be restricted and to abate everything thereon or use thereof, contrary hereto in addition to ordinary legal action or actions for damages."

By virtue of the established residential character of this entire addition and neighborhood brought about and secured by these

obligatory covenants all the lots in the addition acquired an enhanced and stable value, and the location and carrying on of a great public school on the proposed site will entirely obliterate that character and destroy the value of adjacent lots as high-class residence property, to the great damage of these plain

tiffs.

to prove each and every allegation of the answers of both of them."

demnation order in which the defendant comAnd thereupon the court entered a conmissioners were named as condemnation commissioners and they were directed to assess the damages which the defendants in the sustain by reason of the taking of their propcase, owners of lots within the site, would erty

It is alleged in these petitions, and is therefore admitted under the demurrers, thus: "And these plaintiffs say that the taking and "for a site for a schoolhouse and the estabappropriation of the schoolhouse site and the lishment, erection, and maintenance of a schooluse thereof for that purpose will violate the house thereon by the plaintiff, and also to asagreements and restrictive covenants between these plaintiffs and the Meadow Park Land sess the damages, if any, which the owner deCompany and other persons parties to the said fendants, owners of lands and lots in said Company and other persons parties to the said Meadow Park addition outside of blocks numcondemnation suit who now own the building lots within the said site as grantees of the said bered 3 and 4, may sustain by reason of the condemnation and appropriation hereby of any Meadow Park Land Company hereinbefore recited, and will deprive these plaintiffs of their by virtue of the restrictions and agreements interest or easement they may possess, said right, title, interest, and easements in and contained in the said deeds from the Meadto the said lots and each of them comprised ow Park Land Company hereinbefore referred within the schoolhouse site, and that thereby w Park Land Company hereinbefore referred the plaintiffs' said lot 7 in block 5 will be de-forthwith to return under oath such Said commissioners are hereby directed preciated in value, and they will be thereby damaged in a large sum, to wit, the sum of $750."

And the damages in this respect of the Meadow Park Land Company are alleged in the petition for mandamus, and the demurrer admits the truth of that allegation, to be $21,000.

Counsel for plaintiffs correctly state the legal question involved in this language:

The material and controlling proposition in the condemnation case therefore is substantially this: May the Peterses (for instance), who own a 50 foot lot across the street from the proposed schoolhouse site, and which fronts the proposed site, recover in the condemnation proceeding the amount that their lot is depreciated in value and damaged, if any, by reason of the fact that the condemnation and use of the site for schoolhouse purposes violates the restrictive covenants hereinbefore referred to and terminates the easement which their residence lot as a dominant estate has in each and every lot in the site as a servient estate? If yes, the writs sought in both cases should issue. If no, the writs sought should be denied.

Upon the filing of the amended petition in the condemnation case the defendants Meadow Park Land Company and the Peterses (they being the plaintiffs at bar) respectively filed their answers to that amended pleading, and thereupon the court heard evidence on all the issues then joined, as specifically shown

in the record as follows:

"Thereupon on this day, the said cause coming on regularly for hearing, the said school district of Kansas City, as plaintiff in said cause, introduced evidence tending to prove each and every allegation of the said amended petition, and the defendant Meadow Park Land Company and defendants Edna M. Peters and James W. S. Peters introduced evidence tending

to.

assessment of damages to the clerk of this court, * * * and, upon making payment of such amount to defendants or in court for them, it shall be lawful for the plaintiff to hold such. real estate so sought to be taken or appropriated for the uses aforesaid."

And thereupon Judge Buckner at the request of the school district, instructed his commissioners as follows:

"And therefore you will allow to the owners of property not actually taken (i. e., to the Peterses) no damages whatsoever. It is only the value of the property actually taken which the school district can be required to pay. It is against the public policy of the state to require the school district to pay to the owners of the property not actually taken any damages the appropriation of the property taken for a to their property which might result to it from site, and the erection and maintenance of a schoolhouse thereon; and this is true notwithstanding such damages may arise from a violation of restrictions, covenants, or agreements contained in deeds or other instruments conveying or affecting the title to property actually taken, which, if enforced, would prevent the erection and maintenance of a school building upon the property actually taken."

following facts which the demurrers admit to And the petition for mandamus recites the be true, namely:

"The said commissioners since their appointment and qualification have viewed the property, and they believe, and have so expressly declared, that the petitioner's said lots outside of and adjacent to said site are greatly depreciated in value and damaged, and that the petitioner, as owner thereof, is damaged by reason of the condemnation and appropriation of the schoolhouse site for school purposes and the consequent violation of the agreements and restrictive covenants set up in the condemnation petition herein, and the said commissioners would, except for the action and instructions

(232 S.W.)

of the said court as herein alleged allow, assess return under oath such assessment and damages and report in favor of this petitioner a large to the clerk of said court, setting forth the and substantial amount as the petitioner's dam- amount of the damages. The damages allowed age to its said lots lying outside of and ad- each owner shall be stated separately, tojacent to said site, but that under the said di- gether with a specific description of the proprection and instruction of the said court they erty for which such damages are assessed, and cannot and will not do so unless authorized thereupon the clerk shall file such report and so to do by some higher judicial authority. record the same in the order book of the court; "The defendant herein, as judge of the said and thereupon the condemning party may pay circuit court and the said division thereof be- to the clerk the amount thus assessed for the fore which the condemnation cause is pending, party in whose favor such damages have been refuses and has refused and persistently refus- assessed, and on making such payment it shall es and will refuse in the future, unless other- be lawful for the condemning party to hold wise directed by controlling judicial authority, the interest in the property so appropriated to permit the said commissioners hereinbefore for the public use." referred to, or any commissioners in the cause, or any jury that may be called therein to con- A preliminary rule in prohibition and an sider of, determine, assess, report, or find or alternative writ of mandamus have been isallow to the petitioner any damage to or for sued by this court in these cases respectively, its said lots lying outside of and adjacent to and the defendants in each case have lodged the schoolhouse site, and thereby he, as such their demurrer to the petition and writ in judge, has exceeded his judicial authority; and, each case. Generally speaking, the grounds unless the said judge be required to confine of those demurrers are that the respective his judicial action in the premises within the well-recognized limits of the court's jurisdic-petitions and writs do not state facts suffition, the petitioner will be deprived of its prop-cient to constitute a cause of action or warerty and property rights herein before particu-rant the relief prayed for, and upon the islarly set forth for public use without having sues so joined these cases are now set down. just compensation thereof first ascertained and for argument and submission. determined and paid or tendered to it as required by the constitutional law hereinbefore specially referred to and now invoked."

It is alleged in the petition for prohibition, and substantially the same in the petition for mandamus and the demurrers therefore admit the facts pleaded, that:

City, for plaintiffs.
Scarritt, Jones, Seddon & North, of Kansas

Sanford B. Ladd, of Kansas City, for defendants.

WOODSON, J. (after stating the facts as above). [1] I. The covenants and agreements in the deeds from the Meadow Land Company and its grantees, who are owners of lots in addition mentioned outside of the proposed schoolhouse site, create and vest in each of them as owners a legal right of property, an easement in and to each and every lot within the schoolhouse site, which is an appurtenance to their respective lots. This is held in the following cases: Hess, 231 S. W. 997, decided by this court en banc May 24, 1921, not yet [officially] reported; Coughlin v. Baker, 46 Mo. App. 54; Meriwether v. Joy, 85 Mo. App. 634; Doerr v. Cobbs, 146 Mo. App. 342, 123 S. W. 547.

Morrison v.

"These plaintiffs have and hold a right, title, interest, and easement in and to the lots, and each of them, comprising blocks 3 and 4 in said Meadow Park addition sought to be condemned as aforesaid as appurtenant to and running with the title to their said lot 7, which constitute property and property rights which the said school district as plaintiff in said condemnation suit intends to and will take and appropriate for public use and under and by virtue of its said suit, and that the Constitution of Missouri, in section 10 of article 2 thereof, expressly provides that the courts of justice shall be open to every person, and certain remedy afforded for every injury to property, and that right and justice shall be administered without denial or delay, and section 21 of the same article provides that private property shall not be taken or damaged for public use without just compensation, and that such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owners, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested; and it is provided in the statutes of the state (R. S. 1919, § 1793; this is applicable to school districts, section 11428) that the court shall appoint three disinterested commissioners to assess the damages which the owners of propYet in the face of the express provisions erty to be taken or damaged may severally sus- of these constitutional provisions the circuit tain by reason of the appropriation, who, after court is not only proceeding to take plainhaving viewed the property, shall forthwith tiffs' property without first paying them

[2] II. Under the decisions just mentioned there can be no doubt but what the rights mentioned in paragraph I of this opinion are property rights, and under the Constitution of the United States, the Fifth Amendment thereof, and that of the state of Missouri, section 21 of article 2 called the Bill of Rights, such property cannot be taken or damaged without just compensation first be paid, and the latter section provides that

"Until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested."

All of those cases held that the actions would not lie, and that the city was not liable for the damages mentioned, if any, under the provisions of the Constitution before mentioned.

IV. The cases just considered seem to be in clear conflict with the constitutional provisions before mentioned and with other decisions of this court and those of the Court of Appeals upon the same subject.

just compensation therefor, but the rec-[adjacent property and open certain streets, ord discloses that it is going to take their etc. property without paying them one cent therefor. This the court has no legal authority to do, and for that reason the writ of prohibition should be made permanent, without the defense made by the defendants should be sustained, which will be duly considered in the next paragraph of this opinion. Bridgewater v. Ocean City R. Co., 62 N. J. Eq. 276, 49 Atl. 801; Schickhaus v. Sanford, 83 N. J. Eq. 454, 91 Atl. 878; King v. Union Trust Co., 226 Mo. 351, 126 S. W. 415; Bolin v. Inv. Co., 273 Mo. 257, 200 S. W. 1059, L. R. A. 1918C, 869, by Brown, C. (criticized, but not overruled in this respect); Randolph on Eminent Domain (Ed. 1894) p. 72, § 79; Nichols on Eminent Domain (2d Ed., 1917) vol. 1, §§ 121, 235, 346, 348, 719; Allen v. City of Detroit, 167 Mich. 464, 133 N. W. 317, 36 L. R. A. (N. S.) 890; Allen v. Murfin, 159 Mich. 613, 124 N. W. 581; Kirby v. School Board, 1 Ch. 437; Arnold v. Hudson R. Co., 55 N. Y. 661; Story v. N. Y. El. R. Co., 90 N. Y. 122, 43 Am. Rep. 146; Ladd v. City of Boston, 151 Mass. 585, 24 N. E. 858, 21 Am. St. Rep. 481; City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185; United States v. Illinois C. R. Co., 154 U. S. 225, 14 Sup. Ct. 1015, 38 L. Ed. 971; United States v. Welch, 217 U. S. 333, 30 Sup. Ct. 527, 54 L. Ed. 787, 28 L. R. A. (N. S.) 385, 19 Ann. Cas. 680.

Van

III. Counsel for defendants rely upon the following decisions in support of the positions taken by the circuit court in this case: De Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695, 28 Am. St. Rep. 396; Glasgow v. St. Louis, 107 Mo. 198, 204, 17 S. W. 743; Funke v. St. Louis, 122 Mo. 132, 138-140, 26 S. W. 1034; U. S. v. Certain Lands (C. C.) 112 Fed. 622; Doan v. Cleveland Short Line R. R. Co., 92 Ohio St. 461, 112 N. E. 505; Frazer v. City of Chicago, 186 Ill. 480, 57 N. E. 1055, 51 L. R. A. 306, 78 Am. St. Rep. 296; Bacon v. Walker, 77 Ga. 336; Long v. City of Elberton, 109 Ga. 28, 34 S. E. 333, 46 L. R. A. 428, 77 Am. St. Rep. 363; Lewis on Eminent Domain (3d Ed.) § 366; Dillon, Mun. Corp. (5th Ed.) § 1018.

There is no use of considering all the cases cited by counsel, but we will consider the cases cited from this court. The two first cases were suits by injunction to restrain the city from damaging private property for public use, without first paying just compensation. The damages in the first case were said to have been caused by establishing a fire engine house near the plaintiff's property, and in the second the damages claimed were vacating a street near plaintiff's property. In neither of said cases did the plaintiff's property adjoin the public improvement, nor was directly affected by it. In the third case the attempt was to have commissioners appointed to assess damages to the plaintiff's property caused by the subdivision of some

In the case of Morrison v. Hess, supra, we held that such rights as are here involved were property rights, and enjoined Hess from violating the restrictions contained in the deed regarding the character of the buildings to be erected in the addition, and that, of course, was upon the theory that each and every lot owner in the addition had an easement in and to each and every other lot therein to the extent to see that no such building should be erected in the addition in violation of the covenant of restriction, and that, of course, was upon the theory that the easement was an appurtenance to all the other lots of the addition. And the Court of Appeals has very properly held that as to any injury a lot owner may sustain by reason of the violation of such a covenant of restriction he may recover damages therefor in the courts of this state. Sanders v. Dixon, 114 Mo. App. 229, 89 S. W. 577.

While it is true the plaintiffs purchased their property subject to the restrictions mentioned in the Meadow Park Land Company's deed which created the easement mentioned in their favor, which added materially to the value of their property for residential purposes in so far as private persons were concerned, yet that restriction in no manner militated against the power or authority of the school district to take the property for school purposes, although such taking and use would greatly damage the property for residential purposes. But the paramount idea in the case, the damage to the property, must not be lost sight of, and it is wholly immaterial whether that damage is protected by an easement or by the right that an ordinary deed confers upon the purchaser, for in either case he would have the right to use the same for residential purposes, and the damages would be just the same in each case. The easement or restriction is not designed to compensate the purchaser for damages to property covered by its violation, but to absolutely prohibit all persons, except the state, or some subdivision thereof, from committing the injury by erecting a building in violation of the restriction. Of course, if the state should erect an objectionable building upon its property, which would necessarily work injury to other property in that vicinity, it should, under the constitutional provisions mentioned, respond in damages for the in

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