This is suit seeking to restrain the building or maintaining of an apartment house on certain lots in Goldsmith's addition to Portland.
On October 28, 1910, the Giles Investment Company, a corporation, conveyed Lots 16 and 17 of Block 11, Goldsmith's Addition to Portland, to R.W. Schmeer, trustee. The consideration contributed by the trustee and seven others, of which plaintiff was one and who contributed one-ninth thereof, for the conveyance, was $12,000 — $4,500 in cash and the balance secured by a mortgage. On the same date, defendant, R.W. Schmeer, executed a declaration of trust in writing showing that he held the legal title for the use and benefit of himself and the seven others and further declared that:
"* * * and I do, for myself, my heirs, executors and administrators, covenant and agree to and with said parties and each of them, and with their and each *Page 319 of their executors, administrators, and assigns, that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey the said real property by a good and sufficient deed to the purchaser of said property when the same is sold and after deducting any and all sums paid for assessments, taxes, and charges of every kind that may have been paid or advanced by me for the benefit of said property and the payment of said mortgage and interest, that the balance remaining shall be paid to the several parties in interest in proportion to their payments on account of the said purchase price, assessments, taxes, costs, mortgage and interest."
This declaration of trust was accepted by his trustors by the following writing:
"The undersigned, property owners and residents in the vicinity of the hereinbefore described real property, for the purpose of preventing the purchase of said real estate by a stranger and the possible erection thereon of an apartment house or flats, which we consider will be detrimental to the appearance and value of our several residences and lots, have appointed R.W. Schmeer our Trustee to purchase and hold the title of said real estate, and we have contributed to the said purchase price the several amounts as hereinbefore stated, and we hereby further agree to reimburse our said Trustee on demand for any and all sums paid for assessments, taxes and charges of every kind that he may pay on account of said property and said mortgage and interest.
"We hereby agree to the terms and conditions of the Declaration of Trust signed by R.W. Schmeer."
This acceptance was signed by M.G. Thorsen, Mrs. R. Becker, J.R. Krausse, Frank A. Heitkemper, A.L. Levy, C.J. Cook and William Gadsby, the trustors, who with the trustee, Schmeer, had contributed to the purchase price.
In 1914, the majority of the trustors requested the trustee to dispose of the property without restrictions *Page 320 as to apartment houses and flats. The plaintiff was apprised of the desire on the part of the majority and wrote the trustee that while he would very much regret to see an apartment house erected on these lots, closed his letter by saying:
"However, I would not like to be the only one to stand out and if the others concerned would prefer to sell, I would not feel like making any objections provided we could sell for a price which would not mean a loss."
On March 23, 1922, the trustee wrote the plaintiff informing him that at a meeting of the owners the trustee was instructed to sell without restriction as to apartment house and unless objection was made within five days the trustee would offer the property for sale on said terms. Plaintiff made no reply.
The trustee made no sale of the lots and the matter drifted along until about September 1, 1925, when the beneficiaries executed an option to R.W. Schmeer to the lots in question, permitting him to buy said lots without restriction as to their use. The interest of some of the beneficiaries became involved and it required some time to adjust the transfer so as to enable the trustee to convey good title. By its terms, the option would expire on November 1, 1925. However, all the other beneficiaries except plaintiff completed the contract of sale to defendant Schmeer after the expiration of the option. Plaintiff was aware of these transactions. He however refused to complete the contract of sale to Schmeer because the option to purchase had not been exercised within the time therein limited. Notwithstanding that plaintiff knew of the action of defendant Schmeer in buying the interest of *Page 321 the other beneficiaries after the expiration of the option, he gave no notice of his intention to rely upon the terms of the option or to cancel the same, until January, 1926. Thereafter and on November 29, 1926, defendant Schmeer, as trustee and as an individual, conveyed, without restrictions as to apartments or flats, the north one-half of these lots to defendant Larrowe. The trustee thereupon notified plaintiff of the sale and the amount of the purchase price and on December 18, 1926, sent him a check for his proportionate share. This check plaintiff retained in his possession until January 8, 1927, when he returned it to the trustee with the advice that he refused to accept it or sanction the sale.
Defendant Larrowe began the construction of an apartment house upon these lots within a few days after his purchase and completed the excavation for the basement during the month of December, 1927. This construction work was within eighty feet of plaintiff's residence and must have been known to him during its progress. He was informed, as early as January 1, 1927, by the contractor on the job, that defendant Larrowe was constructing an apartment house, but made no move in the matter until January 12, 1927, when he notified Larrowe not to proceed further in the construction.
On March 9, 1927, when the building was about one-half completed, the complaint in this suit was filed, alleging in effect the above facts and further alleging that the trustee, the plaintiff and the other trustors entered into an agreement whereby the trustors and the trustee purchased the lots and,
"* * * when so purchased should never be sold to a stranger for the purpose of building or using on either or both of said lots, or with authority to any *Page 322 purchaser to build or use thereon, an apartment house or flats; but it was agreed that the property should be sold thereafter with a restriction against the erection thereon of an apartment house or flats.
"In order to effect the purpose of said joint undertaking, as aforesaid, and for no other purpose, it was mutually agreed between the contributors to appoint the defendant, R.W. Schmeer, one of the contributors, as the agent of the contributors to effect the purchase of the said property for the benefit of all the members of said joint enterprise, and it was agreed that the legal title of the said property should be taken in the name of the said R.W. Schmeer, to be held by him as trustee for the benefit of and to effect the purpose of the contributors, as aforesaid, and for no other purpose, and the said defendant, R.W. Schmeer, as one of the parties to said joint agreement, agreed with the others to accept said agency and said trusteeship according to the terms of said appointment, and not otherwise."
Plaintiff had contributed one-ninth of the purchase price and was therefore the equitable owner of an undivided one-ninth interest in said property.
Plaintiff attached a copy of the declaration of trust made by defendant Schmeer, the salient parts of which have been heretofore quoted, and made the same a part of his complaint. He further alleged:
"That in and by the said declaration, the said R.W. Schmeer, intended to declare the terms of his trusteeship and his powers and duties thereunder in accordance with the terms of the agreement hereinbefore set out, and to declare that he held said property for the purpose of preventing a stranger from buying said property and building thereon an apartment house or flats, and particularly intended to mean by the following words in the said declaration, `that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey the said real property by a good and sufficient deed to the *Page 323 purchaser of said property,' that he was to dispose of the said real property to effectuate the purpose of the said trust as hereinbefore recited, and not otherwise, and to sell the same subject to the restriction against apartment houses or flats, and not otherwise, and that the good and sufficient deed in the declaration was to be a good and sufficient deed, subject to the said restriction, and not otherwise, and before and at the time of accepting said trusteeship agreed orally to the same effect with plaintiff and the other contributors."
He then alleged, in substance, the sale by Schmeer to Larrowe without restrictions as to apartment houses or flats, and the construction of the apartment house by Larrowe, and that he was damaged thereby and asked for a decree and judgment that the apartment house be abated and removed and the lots restored to their original condition.
To this complaint, defendant filed a demurrer which was sustained by the circuit court. Plaintiff refusing to further plead, the suit was dismissed and the cause appealed to this court.
On that state of the pleadings, this court reversed the decree and judgment and remanded the cause with permission to plaintiff to amend his complaint and ask for an alternative decree for damages in the event the trial court should find that the removal of the apartment house could not be effected except at great loss to defendant Larrowe: Heitkemper v. Schmeer, 130 Or. 644 (275 P. 55, 281 P. 169).
Thereafter, plaintiff amended his complaint so as to conform to the suggestion of this court, said amendments not being material to the issues herein presented and said amended complaint being in effect as hereintofore set out, except that plaintiff alleged damages *Page 324 in the sum of $8,776.23 and changed the prayer to the alternative.
To the amended complaint, defendant Schmeer filed an answer in substance admitting the purchase of the lots by him as trustee, the execution of his declaration of trust, the execution of the writing made by the other beneficiaries in acceptance of his declaration of trust, but denied that there was any other agreement or understanding on his part or to his knowledge except as stated in said declaration and denying generally that plaintiff suffered any damages by reason of the sale of the property without restrictions as to apartment houses or flats. He alleged that in 1914 the plaintiff had waived any right to have the property sold with such restrictions and therefore should be estopped from now claiming the same, and further alleged that in 1922 plaintiff consented to a sale of the lots without such restriction; that in 1925 the plaintiff again waived the right to have such restrictions inserted in any conveyance executed by the trustee, by giving defendant Schmeer an option to purchase said property without such restrictions with the knowledge and information that Schmeer would not purchase the interest of any of the trustors unless he could get the interest of all the trustors and without restrictions as to apartment houses and flats and that plaintiff knew that Schmeer was completing the purchase from the other trustors after the option had expired but that plaintiff gave no notice until January, 1926, of his refusal to go through with the deal, therefore plaintiff should be estopped from now asserting any rights under such restrictions. He further alleged laches on the part of plaintiff in that he was aware on January 1, 1927, that defendant Larrowe was constructing an *Page 325 apartment house on those lots and made no objection until January 12, 1927, and that, notwithstanding defendant Larrowe continued the construction of the apartment house, this suit was not filed until March 9, 1927, at which time the building was 50 per cent completed; the building was to cost $65,000.
The defendant Larrowe filed an answer to the same tenor and effect as that of the defendant Schmeer and further alleged that he had no knowledge or information of any restriction being against said lots until after he made the purchase and expended large sums of money on the property.
The plaintiff, in his reply, denied all the new matter set up in the answer of either defendant and asserted that this court, on the former appeal, placed a construction upon the declaration of trust and the acceptance of said declaration and that the parties should be bound by that decision.
The cause came on for trial and, upon hearing the testimony and argument of counsel, the court made findings in favor of plaintiff and entered an alternative decree and judgment, decreeing that the maintenance of the apartment house constructed on said lots should be abated and the lots restored to their original condition within ninety days or, in default thereof, the plaintiff recover of and from defendant and each of them the sum of $3,000 in full for all damages occasioned by the building of said apartment house. Defendants appeal.
Appellants contend that the circuit court erred in holding that the declaration of trust, signed by defendant Schmeer, and the writing, signed by the beneficiaries, should be construed as one instrument. *Page 326
"No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law." Oregon Code 1930, § 9-905.
The evidence is not clear whether the two papers, the declaration of trust and the acceptance, were attached together at the time of their execution. The complaint would rather intimate they were not. Paragraph XI of the complaint in support of the declaration of trust alleges:
"That when copies of the declaration so made as aforesaid by the said R.W. Schmeer, were delivered to plaintiff and the other contributors, they, in order to make more clear and certain the meaning of said declaration of trust, signed and executed and delivered to the said R.W. Schmeer, the following writings:"
Then follows a copy of the acceptance of the declaration of trust hereinbefore quoted. We do not attach any particular importance in the instant case as to whether these papers were or were not physically attached at the time of their execution. In any event, each writing was practically contemporaneous and it appears that there has never been any question but that the trustee and each of the beneficiaries knew all about both writings all the time. Each writing clearly refers to the same transaction. One writing having been executed by the party "creating the trust" and the other by the party "declaring the trust", they should be read together. *Page 327
This assignment of error is predicated on the circuit court holding that the declaration of trust and the written acceptance thereof, when read as one instrument, prohibits the trustee from ever conveying the property held in trust without restrictions as to apartment houses or flats.
The law favors the greatest latitude of individual freedom of contract but does not look with favor upon limitations upon the use of real property. Any restrictions on the use of such property, must clearly appear in the instrument creating such restrictions, all doubts being resolved in the favor of the untramelled use: Gerling v. Lain, 269 Ill. 337 (109 N.E. 972);Van Duyne v. Chase, 149 Iowa 222 (128 N.W. 300); Casterton v.Plotkin, 188 Mich. 333 (154 N.W. 151); Fortesque v. Carrol,76 N.J. Eq. 583 (75 A. 923, Ann. Cas. 1912A, 79); Hunt v. Held,90 Ohio 280 (107 N.E. 765); Crawford v. Senosky, 128 Or. 232 (274 P. 306). With this view of the law in mind, we proceed to analyze the declaration of trust.
Here were eight people owning, and all but one occupying as a residence, what they considered, at that time, residential property scattered over five blocks in what was Goldsmith's addition to the city of Portland. They jointly purchased the two lots in Block 11, in 1910. Their purpose in purchasing was to prevent the sale to a stranger and the possible erection of an apartment house or flats thereon at that time. There were no building restrictions on any of the other lots in any of the blocks in which either of these persons owned or occupied his residence. In making the purchase, they made use of an agent or trustee to hold the legal title. The conveyance named the grantee therein, defendant R.W. Schmeer, as trustee without *Page 328 disclosing either the terms of the trust, or the beneficiaries. After the passage of the law in 1919 (Oregon Code 1930, § 63-110) the parties knew that anyone buying the property from the trustee might be an innocent purchaser; that a deed from the trustee as grantor would be prima facie evidence of title in the grantee.
In 1910, there were many vacant lots without restrictions as to their use, over which the trustors had no control, in the five blocks in which the trustors' individual residences were located. They must have anticipated the change that has actually occurred in the locality from a strictly residential district to one where apartments, flats, etc., have been built. Almost one-half of the block on which the home of Mr. Levy, one of the trustors, is located, and immediately south of Block 11, is occupied with apartments or flats. It would be very natural for the trustors, knowing the difficulty in getting eight men to agree as to the proper time to make a sale of said property and under what conditions the sale should be made, to place entirely in the hands of the trustee the power to determine when to make the sale and the conditions and the restrictions to be placed against said property.
The trustee did,
"Covenant and agree * * * that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey said real property by a good and sufficient deed to the purchaser of said property, when the same is sold."
Plaintiff now contends that, by the above declaration, R.W. Schmeer intended to, *Page 329
"* * * declare that he held said property for the purpose of preventing a stranger from buying the said property and building thereon an apartment house or flats and particularly intended to mean in the following words in the declaration, `that I will hold, manage and dispose of said real property as in my judgment may seem best, and I will convey said real property by a good and sufficient deed to the purchaser of the said property'; that he was to dispose of said property to effectuate the purpose of said trust * * * to sell the same subject to the restriction against apartment houses or flats and before and at the time of accepting the trusteeship, agreed orally to the same effect with the plaintiff and other contributors."
There is no evidence of such oral agreement. It is remarkable that if the understanding of said declaration, at the time it was made, was as now claimed by plaintiff, that nothing was mentioned of any restriction to be inserted in the conveyance which the trustee covenanted to make to the purchaser. The disposal of the property was to be left to the trustee's best judgment.
It appears that the man who made the sale to the beneficiaries represented that he had a prospective buyer who desired to and in a short time would buy this property from the trustee and erect thereon a residence. There appears to have been no doubt in the minds of the beneficiaries but that a sale would be made to said prospective buyer and that it would not be necessary to place restrictions in the deed. All the contributors who testified agree that the understanding was that it would be necessary to hold the property but for a very short time. The beneficiaries were all experienced business men of Portland, so that the evidence that a sale would be consummated shortly *Page 330 must have been very convincing. There is no evidence of an intention to hold the property for a considerable length of time, or that it was never to be sold without restrictions against apartment houses and flats. Needless to say, the prospective purchaser failed to materialize. In the meantime the property kept decreasing in value until at the time of the sale by the trustee it would bring about only one-half of what the trustee paid for it.
Plaintiff contends that what is meant by the statement in the declaration of trust, in which defendant Schmeer covenanted to convey the said real property by a "good and sufficient deed", is that the deed that the trustee should make in case of sale would be a "good and sufficient deed" to protect the restrictions. The words "good and sufficient deed" are words of well-known and generally accepted import. They are in common usage in contracts for the sale of land.
"If it had been the intention of the defendant to covenant to execute and deliver a deed without warranty, he should not have used the words `good and sufficient'." Seaboard Air Line Ry. Co. v. Jones, 120 S.C. 354 (113 S.E. 142).
In a specially concurring opinion in the above case, Cothran, J., said, "I concur upon the ground that a covenant to convey by a `good and sufficient deed' means by general warranty." (Citing many cases.)
"It is a general rule that `an agreement to sell land, and to give a good and sufficient deed of it, means a deed that will convey a good title to the land'. Linton v. Allen, 147 Mass. 231,17 N.E. 523." New York N.H. H.R. Co. v. Butter, 276 Mass. 236 (176 N.E. 797).
"The accepted rule is that upon agreement for the sale of land the vendor must be considered as contracting *Page 331 for a general warranty deed unless the contrary is clearly shown. In this case, the contract requires the vendor to execute and deliver a good and sufficient deed of conveyance, and the trial court did not err in construing this to require the vendor to convey by deed with general warranty." Ford v. Street, 129 Va. 437 (106 S.E. 379).
"A good and sufficient deed is a marketable deed — one that will pass a good title to the land it purports to convey. We do not agree with counsel that a stipulation in a contract providing that the grantor shall convey `a good and sufficient deed', is satisfied by a conveyance of any title he may have, whether it be good or bad." Hall v. McKee, 147 Ky. 841 (145 S.W. 1149).
To adopt the meaning of those words now claimed by plaintiff would be giving words of ordinary use and acceptation a strained and unusual construction: Oregon Code 1930, § 9-217. There are no facts or circumstances in the instant case that would justify the court in so construing them.
There is no allegation in the complaint, nor is there any evidence, that the trustee did not use his best judgment in making the sale.
To adopt the construction claimed by plaintiff, would be adding to the trust agreement covenants which neither the trustors nor the trustee made, to say nothing of the statute which provides that when the terms of an agreement have been reduced to writing it is to be construed as containing all those terms and excludes all other evidence of its terms except the writing, with exceptions not material to this case: Oregon Code 1930, § 9-212. We would also have to ignore the provision of the Code defining the office of the judge in the construction of an instrument, "not to insert what has been omitted": Oregon Code 1930, § 9-214. *Page 332
It is undisputed and the fact is that the locality which the trustors wished to protect had been invaded by the erection of many commercial buildings, such as the zoning ordinance permits, some considerable time before the sale by the trustee to defendant Larrowe. In 1924, when the city adopted the zoning ordinance, the property of the trustors, including that of plaintiff was designated as Zone 2, territory in which apartment houses, flats, etc., might be built. But it is claimed by the respondent that this court passed upon the meaning of the declaration of trust and its acceptance thereof when this case was before the court on demurrer: Heitkemper v. Schmeer, supra. What this court passed upon at that time was whether or not the complaint stated a cause of suit. This court did not say that the two papers referred to as the declaration of trust and the acceptance thereof, when read as one, of itself showed a state of facts upon which plaintiff might recover or that a mere inspection of the deed which the trustee held was sufficient to put a purchaser on notice of the trustor's interest therein. The plaintiff, in his complaint, did not rely upon the written declaration of trust but alleged a further agreement made at the time the property was bought by the trustee, portions of said complaint referring to said agreement being above quoted. The complaint with such allegations was sufficient. But, when issue was joined and the agreement denied, it was incumbent upon the plaintiff to prove the allegation relating to such agreement. The plaintiff must have thought that the agreement, alleged in addition to the declaration and acceptance, was necessary to his cause or he would not have so pleaded.
It will be observed that this suit, as originally begun, was to prevent the building of an apartment *Page 333 house or flats on these two lots, alleging that such a building would greatly diminish the value of plaintiff's property.
The plaintiff having alleged that he was damaged by reason of the construction of an apartment house, it was incumbent upon him to establish his allegation by a preponderance of the evidence. It would seem that the preponderance of evidence was entirely against this allegation. Apart from plaintiff's own testimony and that of his wife, the only other witness who testified that the plaintiff's property was damaged was Mr. Dean. He testified that the property was damaged to the extent of $6,000. In stating how he arrived at that conclusion, he says, in effect, that notwithstanding that the property is located in an unrestricted district, as to apartment houses, and that many such buildings have already been erected therein, not until some one actually began the construction of such a building in the immediate vicinity of plaintiff's residence did the lack of restrictions affect its value. His testimony is not borne out by the general experience of property owners under the zoning ordinance of Portland.
On the other hand, Mr. A.H. Hickman, with an experience of twenty-three years in the realty business in Portland, Mr. A.R. Ritter, with twenty-one years of experience in the same business in Portland, Mr. A.C. Callan, a resident of Portland since 1889 and in the real estate business since 1911, and Mr. Henry E. Reed, who has lived in Portland for sixty years and has been in the real estate business continuously for the past seven years, specializing in appraisals, and who had been in the real estate business formerly as early as 1896 and who served for many years as *Page 334 assessor of Multnomah county and is generally recognized as an authority on real estate values in Portland, all testified, in effect, that it is the restriction to residence property in a whole district or zone that gives the property in such districts value as residential property. The fact that property is located in a district without such restrictions, and has already been invaded by commercial buildings, is what decreases its value as residential property rather than the actual construction of one more commercial building. They further testified that the building of the apartment house in suit did not damage or lessen the value of plaintiff's residential property.
The reason given by the beneficiaries for their purchase of the property was because they believed that the erection thereon of apartment houses or flats "will be detrimental to the appearance and value of our several residences and lots". The value they had in mind must have been its commercial value. There is no evidence that the building in question had detracted from the appearance of plaintiff's residence and the preponderance of the testimony is that it has not diminished its value.
The evidence shows that such restrictions of the use of property tend to diminish its value unless it is situate in a restricted residential district. Placing restrictions as to apartments or flats on only two lots in a district where apartment houses and flats already exist and all other lots are unrestricted would greatly diminish the value of the lots so burdened. This is abundantly established by the history of the lots under consideration. The lots in suit have no peculiar residential value over and above that of the other lots in the vicinity. It is not likely that any one desiring to *Page 335 buy strictly residential property would purchase property with such restrictions when there were so many lots without restrictions and without buildings in the vicinity. The purpose for which the lots were acquired has ceased to exist. Restrictions on this tract are no longer of value to plaintiff. The trustee has held the property for more than a reasonable length of time.
We must remember that this is not a suit to abate a nuisance, but to enforce the terms of a trust regarding certain restrictions. The character of the territory sought to be protected having so changed, the purposes of the trust have been defeated by causes outside the trust agreement. The purpose was to protect a district, not an individual residence.
The judgment of the trial court on a question of fact is entitled to weight and consideration but a suit in equity must be tried de novo in this court and while we give the lower court's opinion on questions of fact consideration, this court is by no means bound by the trial court's conclusions. It is argued that the trial court having viewed the premises he is in a much better position to estimate the value of the evidence, than this court. If this were a suit to abate a nuisance, that argument would be entitled to great weight, but the object of the suit is not to determine what damage may have been occasioned by the construction of this particular apartment house, by the manner of its construction and the way in which it is conducted, but as to what damage would be occasioned by the construction of an apartment house when conducted according to law and the ordinances of the city of Portland, and so as not to create a nuisance. Under those circumstances, the view of the particular building is of very *Page 336 slight value in determining the matters at issue in this cause.
In reference to how his property is damaged, plaintiff testified:
"So far as the question you asked, whether it affected the home itself to a great extent, it has destroyed it so far as pleasure and enjoyment of the home is concerned, since they put that apartment there, for several and many reasons. In the first place, it is the outlook of having a very ugly building to stare at in the face from rooms we occupy and like to look out of the window of. It has made a congested condition there; it has a transient population that comes and goes, and it is rather noisy. With that condition there, that has from three to four, sometimes as high as twelve automobiles parked along the land we own right on Pettygrove street. It has resulted several times we could not get in front of our garage, they were parked in front of the garage way. It has resulted in us having to go out and pick up trash and debris in the yard thrown out windows. Children from the apartment have overrun our garden place there; you could not keep them away, and each apartment is fitted with a radio that sometimes keeps going late at night. * * * It has made the house discomfortable. That is, we have never enjoyed it so much. The home means a great deal to myself and family, we use it to enjoy the place, but that has ruined it, so far as enjoying it is concerned. The greatest trouble we have had there, the greatest discomfort, is caused by a condition of smoke. Shortly after they put up that apartment, we were discommoded a great deal by very heavy thick smoke that came roaring out of a chimney on the apartment. I could not understand the smell until I investigated and found out they were using a garbage incinerator. * * *"
He further testified in effect that the smoke was oily and left an oily deposit on his residence. It would get into the house and smoke up the curtains. Some of the smoke he attributed to a defective oil burner. *Page 337
Mrs. Heitkemper, wife of plaintiff, testified to like effect.
Many of the things of which plaintiff complains are not peculiarly or necessarily the result of the erection or maintenance of an apartment house, but of an apartment or other house improperly managed or conducted or equipped.
Nearly every element of damage, of which plaintiff and his wife complain, could easily be eliminated. The smoke nuisance, the noisome odors from the incineration of garbage, the parkings of cars in front of their driveway, they are not obliged to put up with. In no event would defendant Schmeer be liable on these elements. If he is liable at all, he is answerable for the maintaining of an apartment house when properly managed and conducted. It does not seem just or equitable that the owners of eight-ninths of the property should be obliged to forever contribute their interest therein to cater to the esthetic tastes of the owner of the other one-ninth.
Plaintiff has filed a cross-appeal claiming that he is entitled to one-ninth of the price for which the property sold. In this contention, plaintiff is correct. He had a one-ninth interest in the property and is entitled to that proportion of what it sold for.
There are some other questions presented by the record, but, taking the view that we do, they cease to be of any importance.
The decree and judgment of the lower court should be vacated and one entered dismissing the suit as against defendant Larrowe, and awarding plaintiff judgment against defendant R.W. Schmeer in the sum of $363.42.
RAND, C.J., concurs in this dissent. *Page 338