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Zinn v. Sidler.

January 20, 1887, William McKinney and wife conveyed the addition to Thomas A. Harris, describing it as follows: "All of McKinney Heights [except certain blocks therein named] as the same is marked and designated on plat 5 in the office of the recorder of deeds for the county of Jackson, State of Missouri."

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.

A covenant as to the restricted use of the property in question is necessary to sustain Restrictions the plaintiffs' contention; the creation of Land. of such a covenant may be by express words or by reasonable implication from

on Use of

Zinn v. Sidler.

words employed clearly indicative of such a purpose. 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 to be correct and properly recorded becomes a part. of subsequent deeds to same. [Lindsay v. Smith, 178 Mo. App. 1. 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 cover nant.

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Zinn v. Sidler.

It has often been held that in construing plats "effect must be given to the plain meaning and intent they exhibit by their outlines as well as by their words,' as in Caruthersville v. Huffman, 262 Mo. 1. c. 375; Whitehead v. Atchison, 136 Mo. 1. c. 495; and St. Louis v. Railroad, 114 Mo. 1. c. 22. These cases and others of like character in the application of the rule have reference to the subdivision of property into lots and blocks and streets and alleys in which the subdivision becomes fixed upon the filing of the plat in the recorder's office-the block and lot lines being designated as a measure of convenience and necessity and the street and alley lines as defining portions of the tract dedicated by the owner to the public. [Sec. 10290 et seq., R. S. 1909.] These are essentials of every plat; they exist as a necessary part of it and no transfer can be made of the property therein without express reference to such subdivisions.

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

covenantor's purpose. [13 Cyc. 713, and notes.] This conclusion is sustained by an almost unken line of cases, if not by express rulings by the acts themselves showing on the face of the instruments affecting the property, either in express words O by clear implication, a purpose to create a reStriction.


Zinn v. Sidler.

Mo. App. 497; Miller v. Klein, 177 Mo. App. 557; Bolin v. Tyrol Inv. Co., 178 Mo. App. 1.]

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 be 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 be 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 be in writing, i. e., declared in so many words (Fuhr v. Dean, 26 Mo. l. c. 119; Petty v. Church of Christ, 70 Ind. 1. 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 be 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

268 Mo.-44

Maginnis v. Railroad.

run the rulings, admits the facts the evidence tends to prove, and in passing upon it the court is required to make every inference of fact in favor of the party offering the evidence which the jury might with any degree of propriety have inferred in his favor, and if, when viewed in this light, it is sufficient to support a verdict the demurrer should be overruled. [Troll v. Drayage Co., 254 Mo. 332, 1. c. 337.] To give full effect to this rule we cannot weigh conflicting evidence, nor can we make inferences of fact in favor of the defendant to countervail or overthrow inferences of fact in favor of the plaintiff. After careful consideration of the evidence, it is our opinion that the facts testified to by other witnesses offered by plaintiff are clearly contradictory of the statements of the engineer, and if such are believed by the fact triers, as they evidently were in this and the preceding trial, the plaintiff is entitled to recover. If the deceased's foot-prints were as described by other witnesses it was impossible for him to have pursued the course or gone upon the track in the manner and at the place testified to by the engineer. In the first place, the point at which the engineer says the deceased suddenly turned, and from which he went onto the track is, according to the testimony of one of defendant's employees, about twelve feet east of the east end of the railroad crossing and where the deceased was killed. According to his testimony the deceased was at no time on the west side or end of the crossing, whereas his foot-prints disclose that it was at this place that he entered upon the track. They further show that he proceeded down the track to the east end of the crossing, a distance of 16 feet, all of which was impossible if the engineer is correct in his statements. Another thing which the jury had a right to consider in

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