Zinn v. Sidler. CHARLES E. ZINN et al. v. BALTHAZAR SIDLER et al., Appellants. Division Two, July 18, 1916. 1. BUILDING LINE: Restrictions: Must Be by Covenant. To sustain the suit of other lot owners in the block to restrain the owner of a lot from buiding on a strip of ground between the street and what is designated on a plat as "building line," a covenant as to the restricted use is necessary. The creation of such a covenant may be by express words, or by reasonable implication from words employed clearly indicative of such a purpose. 2. 3. 4. 5. 6. 7. : -: Designation on Plat. The mere designation of certain lines on the recorded plat of an addition as “building line," is not a restriction upon the use of the strip outside the line for building purposes. : -: Reference to Plat in Deed. And a reference to the plat in that part of the dedicator's deed describing the land, is to be held to be a matter of description, and not a restriction upon use. -: -: Recognized by Deeds of Others. A reference to the building line in the conveyance of a particular lot, made by a later grantee of the dedicator, is simply a recognition of the restricted use of that lot, but is not a restriction upon the other lots of the addition embraced in the plat. : : Plat as Part of Subsequent Deeds. The rule that a plat of land, shown to be correct and recorded, becomes a part of subsequent deeds, has reference, unless other limitations are mentioned in it, to descriptions; and a mere line drawn upon it, without more, will not suffice to create a covenant as to use. : ―: Effect of Covenant. A restrictive covenant upon use of land affects the fee, and is not favored in the law, and must be expressed in words which give formal expression to the covenantor's purpose; if not by his plat, then either by words definitely defining the covenant, or by vords making apt reference to a designated line defining the extent of the use. : —: Kinds and Character of Covenant. To create a restriction upon the use of a lot for building purposes, a covenant must be created, and it is immaterial whether it be Zinn v. Sidler. termed an equitable easement, or a servitude or a restrictive covenant; if express, it must be in words; if implied, the implication from the words used must be such as will clearly authorize the inference or imputation in law of the creation of the covenant. Appeal from Jackson Circuit Court.-Hon. James H. Slover, Judge. REVERSED AND REMANDED (with directions). Cook & Gossett, Beardsley & Beardsley and Stubenrauch & Hartz for appellants. (1) The mere designation upon the plat of a subdivision of land, or addition, whether within or without a city, of a plain line or lines, and writing on the plat near or along such line or lines the words "Building Line" is too indefinite and indeterminate, and is not a sufficient expression of a positive and perpetual restriction upon the use of the land to be binding as a restriction of the ordinary and usual exercise of ownership and enjoyment of land. Claims of restriction upon the right to ordinary enjoyment of property should be unfavorably and strictly construed. Kitchen V. Hawley, 150 Mo. App. 497; Scharer v. Pantler, 127 Mo. App. 432; Oil Co. v. La Tourette, 19 Okla. 92; McMurtry v. Phillips, 103 Ky. 308; Minister V. Madison Amus. Co., 214 N. Y. 267; Van Duyn v. H. S. Chase & Co., 149 Iowa, 222; Jones v. Williams, 56 Wash. 588; Johnson v. Shelter Island Assn., 122 N. Y. 330. (2) If the platter had so intended to positively restrict, he should and naturally would have said so expressly. King v. Trust Co., 226 Mo. 357. Or the platter may have made his plat as he did intending to put restrictions in his deeds, to make the building line binding as a restriction for some reasonable time and in some Zinn v. Sidler. v. Atchison, 136 Mo. 495; Caruthersville v. Huffman, 262 Mo. 375; Lindsay v. Smith, 178 Mo. App. 189; Simpson v. Mikkelsen, 196 Ill. 575; Smith v. Young, 160 Ill. 163. (3) The "building line,' marked as such on the plat of McKinney Heights, with its distance from the adjacent streets plainly indicated in feet in the same manner as all other distances shown on the plat, is perfectly plain and unambiguous in meaning and is a restriction upon the manner of use and improvement of the lots shown on the plat. Simpson v. Mikkelsen, 196 Ill. 575; King v. Trust Co., 226 Mo. 351; Yeomans v. Herrick, 178 Mo. App. 274; Tallmadge v. Bank, 26 N. Y. 105. (4) The restriction, although unlimited as to time, does not create a perpetuity, but on the contrary is a valid restriction which equity will enforce at the suit of any party entitled to the benefit of it. Stevens v. Realty Co., 173 Mo. 511; Noel v. Hill, 158 Mo. App. 444; Tobey v. Moore, 130 Mass. 448. (5) The appellants having erected their building in violation of the building line, pending the suit, the mandatory injunction requiring the removal of such part of it as violated the restriction was proper. Meriwether v. Joy, 85 Mo. App. 634; Fete v. Foerstel, 159 Mo. App. 75. WALKER, J.-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 t Zinn v. Sidler. reasonable manner, and then abandoned such idea and immediately sold the lots as free and clear of all incumbrances, claims, servitudes, etc. Duncan v. Railroad, 85 Ky. 525; Brown v. Wrightman, 90 Pac. 467; Sec. 2793, R. S. 1909. (3) If a building restriction in the nature of a plan of improvement is disregarded, or suffered to be disregarded, to a substantial extent by the grantor, originator of the same, or those thereafter claiming under him, it is an abandonment of, or such inconsistency concerning the same, that owners of other lands are not bound by such restriction. Improvement Co. v. Towers, 158 Mo. 282; Towers v. Compton Hill Co., 192 Mo. 379; Thompson v. Langan, 172 Mo. App. 64; Hawes v. Favor, 161 Ill. 440; Duncan v. Railroad, 85 Ky. 525; Brown v. Wrightman, 90 Pac. 467. Smart & Strother, Fyke & Snider and E. E. Steele for respondents. (1) The plat of McKinney Heights was recorded in 1886, and vested in the City of Kansas (now Kansas City), the fee of the streets and alleys thereon shown and dedicated to public use. R. S. 1879, secs. 6569-6575; Cameron v. Stephenson, 69 Mo. 372. By the extension of the city limits in 1897, McKinney Heights became a part of Kansas City. Kansas City Charter 1898, sec. 2, art. 1; 1 R. S. 1889, sec. 1880, as amended by Laws 1895, 54; R. S. 1909, sec. 9743. (2) The deeds, under which appellants claim title to their land, describe it by lot and block number on the plat of McKinney Heights. The plat itself, therefore, with all its notes, lines, descriptions and land marks is as much a part of such deeds as if it had been set out in the face of the deeds themselves. Whitehead v. Ragan, 106 Mo. 234; St. Louis v. Mo. Pac. Ry. Co., 114 Mo. 21; Campbell v. Wood, 116 Mo. 201; Whitehead |