Abrams v. Shuger

• Decision Date: 10 March 1953
• Docket Number: No. 97,97
• Citation: Abrams v. Shuger, 336 Mich. 59, 57 N.W.2d 445 (Mich. 1953)
• Parties: ABRAMS et al. v. SHUGER et al.
• Court: Michigan Supreme Court

Page 445

57 N.W.2d 445

336 Mich. 59

ABRAMS et al. v. SHUGER et al.

No. 97.

Supreme Court of Michigan.

March 10, 1953.

Robinson, Robinson & Robinson, Benton Harbor, for defendants and appellants.

Theron D. Childs, Jr., Three Oaks, for plaintiffs and appellees.

Before the Entire Bench.

REID, Justice.

Plaintiffs filed their bill of complaint to enjoin defendant from constructing a temple for religious worship on property subject to restrictions forbidding buildings erected on the premises to be used for other than residential purposes. The case was submitted on pleadings and a written stipulation of facts. From a decree for plaintiffs, defendants appeal.

Plaintiffs and defendants are (severally and individually) owners of lots in Michiana Shores subdivisions, in New Buffalo township, Berrien county, and all of the lots owned by them are subject to the following restrictions:

'(a) No building other than a dwelling house, private garage or such other building or buildings as may be necessary for the use and enjoyment of said real estate for dwelling purposes shall be erected on any part of the property hereby conveyed; nor shall said property be used or occupied by any building erected for manufacturing or mercantile purposes, or as a machine shop, public garage, bakery, laundry, or any other similar purposes.

'(b) One residence only shall be erected on each lot with the exception of lots facing on two streets, upon which, the written consent of the board of directors of Michiana Shore Estates, Inc., having been first had and obtained, one residence may be built facing each street.

'(c) No part of any residence or garage shall be nearer than 5 feet to the side lines of any lot, nor nearer than 15 feet to the front line of any lot.

'(d) The plans and specifications of any residence erected on the above described property, must be approved by the board of directors of Michiana Shore Estates, Inc.' (Italics supplied)

Other and following restrictions are not involved in the controversy in the instant case, but are also contained in the deeds which are in the chain of title of the several lots owned by all of the parties hereto.

During the existence of the restrictions, there has been a development of said subdivisions for residential purposes in accordance with the provisions of subdivision (a) above quoted. Defendants admit that they intend to erect a temple for divine worship on two of the lots covered by the cited restrictions and that the erection thereof would have started on Monday, July 2, 1951, but for the temporary injunction issued on the prayer of plaintiffs, June 30, 1951. Defendants obtained from the village clerk of the village of Michiana a building permit, March 14, 1951, to erect the church on the lots in question.

Since the restrictions came into effect, the subdivisions, except a small portion thereof, were included in and became a part of the village of Michiana, which was incorporated in 1945 or 1946. The village ordinance adopted July 3, 1946, would permit the use of property in the district in question for single family dwellings, churches, schools, libraries and community buildings, a private garage for each residence and certain professional offices. Defendants concede that the ordinance does not override the restrictions in question and expressly cite Phillips v. Lawler, 259 Mich. 567 (syl 5) 244 N.W. 165, in which case we say:

'Restrictions imposed by city zoning ordinance may not be considered as impairing building restrictions imposed by deed.'

Defendants stress the second part of paragraph (a) (which we have heretofore italicized) reading:

'Nor shall said property be used or occupied by any building erected for manufacturing or mercantile purposes, or as a machine shop, public garage, bakery, laundry, or any other similar purposes.'

The trial judge treated the second clause as surplusage. Defendants contend it should not be so treated nor considered; defendants further contend that the second clause limits the restrictions in the preceding portion of paragraph (a) to those uses recited expressly in the second clause, and seeing that the use for church purposes in not forbidden by the second clause, the church use is to be considered as permitted under the restrictions taken as a whole.

It seems fairly clear that the author of the restrictions intended by the second clause to make a double assurance that certain foreseeable uses, improper or undesirable for a residential neighborhood, were certainly to be understood as forbidden, and being unable to foretell or to make a list of all the undesirable uses, simply left the first portion of paragraph (a) to stand as a...