(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 de

fendants in the case at bar by reason of their demurrers to the petitions for these writs, is to this effect:

"Defendant further says that on or about January, 1910, it entered into a written agreement with the owners of the 80-acre tract of 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

"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 than on the rear thereof, and, if a corner lot, nearest to the side line farthest from the lateral street.

"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 entire- demnation order in which the defendant comAnd thereupon the court entered a conly obliterate that character and destroy the missioners were named as condemnation value of adjacent lots as high-class residence commissioners and they were directed to asproperty, to the great damage of these plain-sess the damages which the defendants in the

(232 S.W.)

return under oath such assessment and damages to the clerk of said court, setting forth the amount of the damages. The damages allowed each owner shall be stated separately, together with a specific description of the property for which such damages are assessed, and thereupon the clerk shall file such report and record the same in the order book of the court; and thereupon the condemning party may pay to the clerk the amount thus assessed for the party in whose favor such damages have been assessed, and on making such payment it shall be lawful for the condemning party to hold the interest in the property so appropriated for the public use."

of the said court as herein alleged allow, assess and report in favor of this petitioner a large and substantial amount as the petitioner's damage to its said lots lying outside of and adjacent to said site, but that under the said direction and instruction of the said court they cannot and will not do so unless authorized so to do by some higher judicial authority. "The defendant herein, as judge of the said circuit court and the said division thereof before which the condemnation cause is pending, refuses and has refused and persistently refuses and will refuse in the future, unless otherwise directed by controlling judicial authority, to permit the said commissioners hereinbefore 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 hereinbefore 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:

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

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 Morrison v. 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.

"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; Bo lin v. Ìnv. 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.

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 There is no use of considering all the cases an easement or by the right that an ordinary cited by counsel, but we will consider the cas- deed confers upon the purchaser, for in eies cited from this court. The two first cases ther case he would have the right to use the were suits by injunction to restrain the city same for residential purposes, and the damfrom damaging private property for public ages would be just the same in each case. use, without first paying just compensation. The easement or restriction is not designed The damages in the first case were said to to compensate the purchaser for damages to have been caused by establishing a fire en- property covered by its violation, but to abgine house near the plaintiff's property, and solutely prohibit all persons, except the state, in the second the damages claimed were va- or some subdivision thereof, from committing cating a street near plaintiff's property. In the injury by erecting a building in violation neither of said cases did the plaintiff's of the restriction. Of course, if the state property adjoin the public improvement, nor should erect an objectionable building upon was directly affected by it. In the third case its property, which would necessarily work the attempt was to have commissioners ap-injury to other property in that vicinity, it pointed to assess damages to the plaintiff's should, under the constitutional provisions property caused by the subdivision of some mentioned, respond in damages for the in

(232 S.W.)

In our opinion both writs should be made permanent.

It is so ordered.

ELDER, J., concurs.

GRAVES, J., concurs in separate opinion, in which JAMES T. BLAIR, C. J., and WALKER and DAVID E. BLAIR, JJ., concur. HIGBEE, J., dissents.

jury done, whether done in violation of a strictions add actual value to all the lots of restriction or not. To illustrate: Suppose the addition, it should be protected by the in the case at bar John Jones had a lot equal- courts of the state, then when the school ly valuable for residential purposes, situated board undertakes to deprive the owners of on the other side of the schoolhouse proposed those lots of those values, by condemnation to be erected, but just outside of the re- proceedings, it should be required to pay for stricted area, and which would be equally the same, as for all other values it takes from damaged for residential purposes by the erec- the property owners of the addition by such tion of the same house; could there be any proceedings, and that too, before their propgood or sound reason advanced why the one erty can be taken or damaged as before indishould recover damages for the injury done cated. to his property, and not the other? I apprehend not. Especially is that true when the restriction is not binding on the state or the school district. So this, as I see the proposition, brings us back to the constitutional propositions under consideration; and if appellants' property is not damaged within the meaning of section 21 of article 2, as Judge Black held in the case of Van De Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695, 28 Am. St. Rep. 396, and other similar cases, then I am unable to see in what possible manner the simple change of the form of the action from one for damages to one of condemnation can make the injury sustained fall within that section of the Constitution, especially where both are ultimately sound in damages, in so far as the injury done to the other property is concerned, over and above the value of the property actually taken. And there is no pretense made that there is any liability in this case without it is given by said section 21 of article 2 of the Constitution, and, if it is given by that section, then the form of the action, whether it is one for condemnation or one for damages, can make no possible difference in so far as the injuries here complained of are concerned. The form of the action given by the law creates no right of liability; it only affects the redress for the injury threatened or actually done. If, therefore, the damages sued for in this case do not fall within section 21, art. 2, of the Constitution, then it goes without saying that the plaintiffs have no cause of action whatever, as held by Judge Black in the Van De Vere Case, previously mentioned, but, if it is covered by that section, then, of course, that and all similar opinions are erroneous. and the plaintiffs should recover in this action.

I fur

GRAVES, J. I. I concur in that portion of the opinion which holds that the restrictions in the deeds conveying lots in this addition gave to the parties an easement in all lots sold under similar restrictions. ther concur in the ruling that this property right is of some value, and that it cannot be taken for even a public purpose, without a compensation first being paid, as is required by our state Constitution.

II. I do not concur in that portion of the opinion which overrules the cases of Van De Vere v. Kansas City, 107 Mo. 83, 17 S. W. 695, 28 Am. St. Rep. 396; Glasgow v. St. Louis, 107 Mo. loc. cit. 205, 17 S. W. 743, and Funke v. City of St. Louis, 122 Mo. loc. cit. 138-140, 26 S. W. 1034. These cases, which have been specifically followed up to Gorman v. Railroad and City of St. Louis, 255 Mo. loc. cit. 495, 164 S. W. 509, announced proper principles of law in the cases there determined, but they may have but limited application to the case at bar. They were not condemnation cases, but conceding, as I do, that they construe our Constitution as to matters where property is damaged for public purposes, we shall consider them in that light. When we amended the Constitution in 1875 so as to permit a recovery for property damaged in the taking of other property for pubIn our opinion the cases cited by counsel lic purposes, it became a serious question as for the defendants take too narrow a view to what meaning should be given to the of the constitutional provisions mentioned, amended constitutional provision. and are unsound in principle and should be De Vere's Case, supra, this court threshed no longer adhered to, and they are overruled. out the question, and the ruling in that case There can be no doubt but what the erec- has never been departed from in any subsetion of the schoolhouse on the lots mentioned quent ruling, and its overruling means the in this case is, in spirit, a violation of the overruling of at least a score of cases since, covenants of restrictions mentioned in the as will be seen by an examination of the citadeeds of the Meadow Park Addition to Kan- tor. In Van De Vere's Case, 107 Mo. loc. cit. sas City to the various purchasers of lots 91, 17 S. W. 697, 28 Am. St. Rep. 396, we, in therein. While these restrictions are not the discussion of the change made in the origbinding upon the state or the school board, inal law by the Constitution of 1875, said: acting under the state's authority in such "The amendment must be construed and apcondemnation proceedings, yet, if such replied in view of the evils which it was designed

in Van