Allen v. City of Detroit

Decision Date23 November 1911
Citation133 N.W. 317,167 Mich. 464
PartiesALLEN et al. v. CITY OF DETROIT et al. FRUMVELLER v. POST et al.
CourtMichigan Supreme Court


Appeal from Circuit Court, Wayne County, in Chancery; Alfred J. Murphy, Judge.

Actions by Mark W. Allen and others against the City of Detroit and others, and by Edward Frumveller against Hoyt Post and others. From a decree in the first case for plaintiffs, the City of Detroit appeals, and in the latter case for defendants, plaintiff Frumveller appeals. Decree in the first case affirmed. In the second case modified.

See, also, 159 Mich. 612, 124 N. W. 581.

Argued before OSTRANDER, C. J., and BIRD, MOORE, McALVAY, BROOKE, BLAIR, STONE, and STEERE, JJ. Richard I. Lawson (P. J. M. Hally, of counsel), for appellants City of Detroit and others.

Arthur J. Lacy (Lucking, Emmons & Helfman, of counsel), for all complainants.

Wilkinson, Post & Oxtoby, for complainant Post.


By consent of all parties in interest, the two above-entitled suits were simultaneously heard in the trial court upon the same evidence; it being conceded that they involved substantially the same facts and related to the same property. By further stipulation they have been presented to this court for joint hearing and determination on the same record, and argued together.

The proposed construction of a fire engine house by the city of Detroit on land located contiguous to or near that of complainant's gave rise to this litigation. The city of Detroit has appealed from a decree of the Wayne county circuit court in chancery restraining the erection of a fire engine house on the selected site, holding the same to be in violation of a building restriction limiting the district, including the said proposed site, to use for residence purposes; and complainant, Frumveller, has appealed from a decree denying ‘at this time’ specific performance by defendant Post of a land contract covering lot 163 in the district in controversy, said lot being part of the premises on which it is proposed to erect said engine house. Previous to July, 1886, defendant Hoyt Post and four others owned together and platted what is known as the ‘Waterworks subdivision of all that part of private claim 257 east of Cadillac Boulevard, and between Mack street and Jefferson avenue, Hamtramck now in the city of Detroit.’ As originally platted, the property was not restricted to any particular use. On July 28, 1886, the owners divided the tract among themselves, exchanging deeds for their respective holdings. Defendant Post acquired 18 of the lots as his proportion. He had 11 lots, being Nos. 163 to 173, inclusive, lying contiguous to each other on Hurlbut avenue, which, after holding for some years, he decided to sell under building restrictions, conserving them together as a strictly residential district. Prior to selling any of these lots, he announced and published his general plan to various persons, subsequently making sales on the express understanding and agreement that they should be used for residential purposes only. It is clearly shown that by written restrictions in most of his conveyances, and by specific contracts, written or oral, fully understood, accepted, and acted upon by all who purchased, he subjected all the lots which he sold in that district to such general plan of restriction. These complainants and all others who purchased accepted the restrictions, conformed to, and relied on them, building homes on the lots they bought costing from $3,000 to $6,000. This general plan of a strictly residential district, so initiated, has never been departed from by any of them. An examination of the testimony convinces us that all the restrictions alleged in complainant's bill, such as the exact style of the residences and building line, are not clearly shown to have been imposed upon and strictly observed by all parties as to all lots in the tract, but it is clearly shown that there was a general plan, mutually agreed upon by all parties in interest, mostly in writing, and when not in writing entered upon and consistently observed, restricting these eleven lots to residential purposes only.

The testimony fully justifies the following findings by the learned trial judge:

‘As to these lots, this plan was published by Mr. Post and his authorized agents in dealings with purchasers and prospective purchasers. The property was so held out to the general public. It was, indeed, this very condition which was one of the inducing causes of all the conveyances made, saving possibly two, as hereinafter noted, in the absence of which limitation the sales would not have been affected. * * * There is explicit testimony covering this. There are, moreover, the express restrictions to this effect contained in the deeds of lots 168, 169, 171, 172, and 173. There is the conduct of the parties in interest in the sale of lots 167 and 166. Thus, as to lot 167, complainant Kennedy was told of these restrictions by Post, and that they applied to all the lots before he, Kennedy, received a contract for his purchase. Kennedy, moreover, was obliged to take the plans of his house to Post for approval, and, when the latter gave the contract of sale to Kennedy, it contained an agreement on the vendee's part to proceed immediately with the erection of a substantial, two-story frame house according to the plans prepared by Architect Varney.

‘In the purchase of lot 166 Dr. Young was told by Post that this lot and the others were to be used for residences only, and he, Young, was required to present his plans to Post before the latter agreed to sell at all. Dr. Young's house was in point of fact completed before he received the land contract. These facts furnish material explanation for the omission of the restriction in the deeds of lots 167 and 166, as well as corroboration of the existence of a plan of restriction.

‘Lot 170 and part of lot 171 were taken in the opening of Kercheval avenue from this property. Lot 165 is still the property of Post, but upon September 1, 1903, he gave his son-in-law and daughter, Mr. and Mrs. John F. Robinson, a land contract for the purchase of this lot, and immediately thereafter advanced to them the money with which to build a house costing $3,800, in which, since its completion, they have resided and still reside, thus making confirmation to the established plan.

‘Lots 163 and 164 had each been sold upon contract by Post, but the rights of one vendee had been surrendered and Mr. Post had acquired the interest of the other vendee for the purpose of effecting this sale to the commission. What representations, if any, had been made to these two vendees does not appear, but there is nothing as to them contravening the proofs otherwise adduced.’

[1][2] A failure to clearly establish some of the other allegations in complainant's bill does not militate against the validity and efficacy of this general restriction to a residential district so clearly proven. It is a substantial property right which the owners can maintain and enforce. The law is well settled that building restrictions of the character shown are in the nature of reciprocal negative easements, and may be created upon a division, and conveyance in severalty to different grantees, of an entire tract.

[3] That a protion of the conveyances do not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them and others not, if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, and acted upon by all in interest, it is binding and enforceable on all inter se. It goes with the land, and is equally binding on all purchasers with notice. 5 Encyc. of Law (2d Ed.) 3; Tallmadge v. E. R. Bank, 26 N. Y. 105;Trustees v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615;Lewis v. Gollner, 129 N. Y. 227, 29 N. E. 81,26 Am. St. Rep. 516;Frink v. Hughes, 133 Mich. 63, 94 N. W. 601;Harris v. Roraback, 137 Mich. 292, 100 N. W. 391, 109 Am. St. Rep. 681;James v. Irvine, 141 Mich. 376, 104 N. W. 631;Stott v. Avery, 156 Mich. 674, 121 N. W. 825. In Tillotson v. Gregory, 151 Mich. 128, 114 N. W. 1025, involving the enforcement of an alleged general plan of restriction in a district where some of the lots were subjected thereto in writing and others were claimed to be under the same restraint by parol, Justice McAlvay, though not finding the allegation sustained by the proofs, says: ‘That restrictions of the kind claimed by complainants may be created and held valid is not disputed. Citation of authorities upon that question is therefore not necessary.’

The circumstances under which the city of Detroit became interested in the project of erecting an engine house in this district, as disclosed by the evidence, are as follows: In the early summer of 1909 the fire commission inserted an advertisement in the public press for proposals for sites for a fire engine house in that part of the city. In response, among others a real estate broker named G. F. Bennett by letter dated June 1, 1909, submitted an offer to sell lots 163 and 164 of said subdivision, embracing 100 feet frontage. He did not then own or control these lots, but had knowledge of them and understood that they were for sale, and could be secured. On June 21, 1909, the commission by resolution voted to purchase 75 feet of the property so offered, comprising lot 164 and the southerly half of lot 163. On June 18, 1909, Bennett had secured from Post a 15-day option on the two lots, and as the outcome of various negotiations by the parties in interest Post and wife on July 2d, 1909, executed a warranty deed of the property to Bennett, following which Bennett and his wife executed a deed of lot 164 the southerly half of lot 163 to the city of Detroit. This deed was dated July 3, 1909, but was not, however, acknowledged until September 15, 1909. In the meantime the fire commission had made further efforts to secure a different...

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