Daugherty v. Ward

• Citation: 215 N.W. 526,240 Mich. 501
• Decision Date: 03 October 1927
• Docket Number: No. 82.,82.
• Parties: DAUGHERTY et al. v. WARD.
• Court: Supreme Court of Michigan

240 Mich. 501

215 N.W. 526

DAUGHERTY et al.

v.WARD.

No. 82.

Supreme Court of Michigan.

Oct. 3, 1927.

Appeal from Circuit Court, Wayne County, in Chancery; Clarence M. Brown, Judge.

Bill by J. A. Daugherty and others against William P. Ward. Decree for plaintiffs, and defendant appeals. Reversed, and bill dismissed.

Argued before the Entire Bench, except CLARK, J.Leo J. Ward, of Detroit (John C. Coots, of Detroit, of counsel), for appellant.

Emmons, Klein, Ferris & Cook, of Detroit (Joseph H. Clark, of Detroit, of counsel), for appellees.

BIRD, J.

The plaintiffs herein are seeking an injunction to prevent the defendant from constructing and operating a coal yard on lot 112 of the addition to Dailey Park subdivision, in the city of Detroit. The addition contains 506 lots, and is pretty well improved. The land underlying this addition was owned by the Grand River Land Company and by Charles W. Muntz and his wife, Anna Muntz. They joined forces in platting the addition. After it was platted, each party took his respective share of the subdivision. The Grand River Land Company took lots numbered 1 to 296, both inclusive, and Muntz and his wife took lots 297 to 506. There are no restrictions on the plat, but most of the lots on the addition have been sold with the following restriction:

‘Single private residences, double house, or two-family flat, to be set back at least 30 feet from the front line of the lot, and shall not be built or project within 2 feet of any dividing property line, street or alley line excepted, and shall not cost less than $2,000 for a single residence, and $3,000 for a duplex, and $3,500 for a double house. Said building shall be used for none other than residence purposes; style of building in all cases shall meet with the approval of the grantor. Projections forming a part of the residence or dwelling are construed as a part thereof, and must be within the building line; porches and steps will not be construed as a part of the building, and may be set over the building line if the lot owner so desires; intoxicating liquors shall never be sold upon the said premises.’

The lot involved in this controversy is clear to the southern end of the addition, and is numbered 112. This lot was sold by the Grand River Land Company without restrictions of any kind. The Grand River Land Company was advised in advance of sale what the defendant was buying it for, that he intended to carry on a coal yard.

(1) Plaintiffs, who live in the vicinity, object to this use and instituted this suit to enjoin it. The position of counsel for plaintiffs is that while there are no restrictions on the plat, the subdividers, ‘having derived definite pecuniary benefits from the restrictive covenants by way of building restrictions originally imposed upon all of the lots in the subdivision, are estopped from conveying lot 112 free from restrictions, and that the defendant, as the successor in title of the Grand River Land Company, is also estopped from operating any business on lot 112, which would constitute an infringement or violation of the general plan of restrictions imposed upon all of the lots in said subdivision,’ citing Allen v. Detroit, 167 Mich. 467, ...