(dissenting).
I dissent.
My initial, but not dominant, concern is the inadequacy of plaintiffs’ brief. Despite the mandate of Rule 84.04(c) that an appellant’s brief present a concise statement of relevant facts, plaintiffs’ brief merely sets out separate testamentary summaries by each of ten witnesses. Such summaries are permissible to supplement, but not to supplant, a concise statement of relevant facts. Plaintiffs’ inexcusable breach imposes upon the court a burden we should not assume, and this appeal should be dismissed for failure to comply with Rule 84.04(c). Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223[3] (Mo.App.1972). In view of the majority opinion, however, I have considered the alternative of Rule 79.04, which allows us to rule a case on its merits if we find plain error constituting a miscarriage of justice. But I find no plain error here.
The simple issue in this case is whether the trial court erred by refusing to enjoin a trustee from carrying out an explicit testamentary directive. In an emotional opinion, the majority assumes a psychic knowledge of the testatrix’ reasons for directing her home be razed; her testamentary disposition is characterized as “capricious,” “unwarranted,” “senseless,” and “eccentric.” But the record is utterly silent as to her motives.
The majority’s reversal of the trial court here spawns bizarre and legally untenable results. By its decision, the court officiously confers a “benefit” upon testamentary beneficiaries who have never litigated or protested against the razing. The majority opinion further proclaims that public policy demands we enjoin the razing of this private residence in order to prevent land misuse in the City of St. Louis. But the City, like the beneficiaries, is not a party to this lawsuit. The fact is the majority’s holding is based upon wispy, self-proclaimed public policy grounds that were only vaguely pleaded, were not in evidence, and were only sketchily briefed by the plaintiffs.
The only plaintiffs in this ease are residents of Kingsbury Place and trustees under its indenture. In seeking to enjoin the removal of testatrix’ home at # 4 Kings-bury Place, these plaintiffs claim they are entitled to an injunction first, by virtue of language in the trust indenture; secondly, because the razing would constitute a nuisance; and thirdly on the ground of public policy. But plaintiffs have not shown the indenture bars razing testatrix’ home or that the razing would create a nuisance. And no grounds exist for ruling that the razing is contrary to public policy.
The Trust Indenture. Kingsbury Place is a “private place” established in 1902 by trust indenture. Except for one well-tended vacant lot (whose existence the majority *219ignores in saying the street minus # 4 Kingsbury Place would be like “a missing front tooth”) the trust indenture generally regulates size, constructions and cost of structures to be built on Kingsbury Place. It empowers the trustees to maintain vacant lots and to protect the street from “encroachment, trespass, nuisance and injury.” The indenture’s acknowledgment that vacant lots did and would exist shows that such lots were not to be considered an “injury.” The fact the indenture empowers the trustees to maintain vacant lots is neither an express nor an implied ban against razing residences. The indenture simply recognizes that Kingsbury Place may have vacant lots from time to time — as it now has — and that the trustees may maintain them — as they now do. The indenture itself affords plaintiffs no basis for injunc-tive relief.
Nuisance. Plaintiffs contend the non-existence of the Johnston dwelling would create a nuisance. Plaintiffs opined the home’s removal would be detrimental to neighbors’ health and safety, would lower property values in the area and would be undesirable aesthetically, architecturally, socially and historically. These opinions were based upon conjecture rather than upon a reasonable degree of certainty; hence, they were not binding on the trial court. Kinzel v. West Park Investment Corp., 330 S.W.2d 792[3] (Mo.1959); Abernathy v. Coca-Cola Bottling Co. of Jackson, 370 S.W.2d 175[1, 2] (Mo.App.1963). Plaintiffs’ witnesses made questionable comparisons with other neighborhoods and speculated a nuisance would arise if the dwelling were removed. These witnesses concluded the lot would thereafter remain vacant, because the trustees would breach their duty under the indenture to maintain the lot, and because the existing private police patrol would no longer function. None of these conclusions have bases in fact. The record reveals the one existing vacant lot on Kingsbury Place is well-maintained by the trustees; it does not constitute a nuisance. There is no reason to presume a second vacant lot would be left untended or that private police would cease patrolling. The facts do not support an inference that plaintiffs’ rights in the use of their own lands would be invaded by removing the Johnston home. They are not entitled to injunctive relief on the basis of imagined possibilities.
Public Policy. The majority opinion bases its reversal on public policy. But plaintiffs themselves did not substantially rely upon this nebulous concept. Plaintiffs’ brief contends merely that an “agency of the City of St. Louis has recently [?] designated Kingsbury Place as a landmark,” citing § 24.070, Revised Code of the City of St. Louis. Plaintiffs argue removal of the Johnston home would be “intentional . destruction of a landmark of historical interest.” Neither the ordinance cited in the brief nor any action taken under it were in evidence. Indeed, the Chairman of the Landmarks and Urban Design Commission testified the Commission did not declare the street a landmark until after Mrs. Johnston died. A month after Mrs. Johnston’s death, several residents of the street apparently sensed the impending razing of the Johnston home and applied to have the street declared a landmark. The Commissioner testified it was the Commission’s “civic duty to help those people.”
The majority opinion goes far beyond the public-policy argument briefed by plaintiffs. It suggests the court may declare certain land uses, which are not illegal, to be in violation of the City’s public policy. And the majority so finds although the City itself is not a litigant claiming injury to its interests. The majority’s public-policy conclusions are based not upon evidence in the lower court, but upon incidents which may have happened thereafter.
The court has resorted to public policy in order to vitiate Mrs. Johnston’s valid testamentary direction. But this is not a proper case for court-defined public policy.
*220In Asel v. Order of Commercial Travelers, 355 Mo. 658, 197 S.W.2d 639[1] (banc 1946), the court viewed as contrary to public policy any act that is inherently vicious and contrary to natural justice. The Asel court further cited as the definitive statement of public policy “the principle which declares that no one can lawfully do that which has a tendency to be injurious to the public welfare. 12 Am.Jur., § 666, now 12 Am. Jur.2d, § 175. But plaintiffs’ theory below was that only the plaintiffs, not the public, were injured by the imminent demolition of the Johnston home.
The leading Missouri case on public policy as that doctrine applies to a testator’s right to dispose of property is In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120 [1, 2] (banc 1927), cert. den. 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325. There, an executor refused to pay a bequest on the ground the beneficiary was an enemy alien, and the bequest was therefore against public policy. The court denied that contention: “We may say, at the outset, that the policy of the law favors freedom in the testamentary disposition of property and that it is the duty of the courts to give effect to the intention of the testator, as expressed in his will, provided such intention does not contravene an established rule of law.” And the court wisely added, “it is not the function of the judiciary to create or announce a public policy of its own, but solely to determine and declare what is the public policy of the state or nation as such policy is found to be expressed in the Constitution, statutes, and judicial decisions of the state or nation,1 not by the varying opinions of laymen, lawyers, or judges2 as to the de-
mands or the interests of the public.” And, in cautioning against judges declaring public policy the court stated: “Judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear before the court would be warranted in pronouncing a transaction void on this account.” In resting its decision on public-policy grounds, the majority opinion has transgressed the limitations declared by our Supreme Court in Bahn’s Estate.
The right of these plaintiffs to injunctive relief is by no means clear and injunction is “a harsh remedy, granted only in clear cases.” American Pamcor, Inc., v. Klote, 438 S.W.2d 287[1] (Mo.App.1969). It requires judicial imagination to hold, as the majority does, that the mere presence of a second vacant lot on Kingsbury Place violates public policy.
As much as our aesthetic sympathies might lie with neighbors near a house to be razed, those sympathies should not so interfere with our considered legal judgment as to create a questionable legal precedent. Mrs. Johnston had the right during her lifetime to have her house razed, and I find nothing which precludes her right to order her executor to raze the house upon her death. It is clear that “the law favors the free and untrammeled use of real property.” Gibbs v. Cass, 431 S.W.2d 662[2] (Mo. App.1968). This applies to testamentary dispositions. Mississippi Valley Trust Co. v. Ruhland, 359 Mo. 616, 222 S.W.2d 750[2] (1949). An owner has exclusive control *221over the use of his property subject only to the limitation that such use may not substantially impair another’s right to peaceably enjoy his property. City of Fredricktown v. Osborn, 429 S.W.2d 17[2, 3] (Mo.App.1968), Reutner v. Vouga, 367 S.W.2d 34[11—13] (Mo.App.1963). Plaintiffs have not shown that such impairment will arise from the mere presence of another vacant lot on Kingsbury Place.
I find no plain error in the trial court’s denial of injunctive relief, and on the merits I would affirm the trial court’s judgment. Because of plaintiffs’ defective brief, however, I would dismiss the appeal.
, See also Phoenix Assurance Co. of N. Y. v. Royale Investment Co., 393 S.W.2d 43[1] (Mo.App.1965), holding “public policy is not an unknown and variable quantity upon which a valid judgment may be based. It is to be determined by the Constitution, the laws, and the judicial decisions of the State.”
. In his treatise on The Nature of the Judicial Process, p. 141, Mr. Justice Benjamin Cardozo discussed the role of the judge as a legislator and warned: “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence.”