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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 property, without more, will not suffice to create a covel nant.

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 the covenantor's purpose. [13 Cyc. 713, and notes.]

This conclusion is sustained by an almost unbroken line of cases, if not by express rulings by the facts themselves showing on the face of the instruments affecting the property, either in express words or by clear implication, a purpose to create a restriction. [King v. Union Trust Co., 226 Mo. 1. c. 367; Scharer v. Pantler, 127 Mo. App. 433; Hisey v. Church, 130 Mo. App. 566; Kitchen v. Hawley, 150

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. 1. 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

Zinn v. Sidler.

is implied. [Stoepler v. Silberberg, 220 Mo. 258; Waldermeyer v. Loebig, 222 Mo. 540.] Express recognition of this rule is given by our statute (Sec. 2793, R. S. 1909); but it existed at common law (Coke Lit. 384b; Rawle Cov. 5), the statute, and others of like nature, being merely declaratory of same (2 Reeves' Hist. Eng. Law. 54); and in a lease the term "demise" is held to import a covenant on the part of the lessor of right and title to make the lease and for quiet enjoyment. [Crouch v. Fowle, 9 N. H. 219, 32 Am. Dec. 350.]

But no such rule exists in regard to covenants carrying a restriction. These, for the reasons stated, must be defined. This has not been done; and while the tendency of the courts is to disregard restrictive covenants, we would be inclined to sustain the plaintiffs' contention if the facts showed that by so doing the intent of the original grantor would thereby be effected. But we do not so interpret the evidence. We therefore decline, on the proof alone of a designated line appearing on the plat, to read into the conveyances of the property subdivided an express restriction, the effect of which would be to limit the use of and lessen the tenure by which the owners hold these lots.

From the foregoing it follows that the judgment below should be reversed and the case remanded with directions to the trial court to dismiss plaintiffs' action and to enter judgment for the defendants, and it is so ordered. All concur.




Division Two, July 18, 1916.

1. SEWER TAX: Cemetery: Presumption in Favor of Ordinance. There is a presumption in favor of the reasonableness of an ordinance which includes a cemetery within a district sewer district, and taxes the cemetery property with the cost of constructing lateral sewers laid in the alleys or streets abutting against the cemetery. The burden of establishing the contrary rests upon the objector and this prima-facie case must be overcome in the most satisfactory manner.


Mullins v. Cemetery Assn.






-: When No Contrary Showing. Where the evidence shows that the sewers, for the payment of the cost of the construction of which the tax bills sued on were issued, served to carry away the surface water from the cemetery, and there is no evidence that sewers are not beneficial in the sanitation of the cemetery. it will be presumed that the city legislature was fully informed on the subject and that its ordinance including the cemetery ir the sewer district was reasonable.

: Area Rule:

Reasonableness. A city council must levy a district sewer tax upon cemetery property ir proportion to area, or relieve it from benefit assessment al together; and although the tax is very large, owing to the large size of the cemetery, its ordinance levying a tax ac. cording to area must stand in the absence of evidence showing that it was unreasonable.

-: Cemeteries as Separate Districts: Evidence. It is not reversible error to exclude evidence to show that the city had in two other cases made cemeteries separate sower districts, where there is no showing that the facts connected therewith were similar to those in the case on trial.

: Notice of Proceedings: Due Process. No notice is necessary of the proceedings resulting in the sewer tax bills which are legislative assessments, unless such notice is required by the charter or some ordinance or some statutory provision.

-: Against Cemetery as a Whole. The sewer tax bills should be issued against the cemetery as an entirety if the ownership of all the land in the cemetery is in the cemetery association.

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