Bohm v. Silberstein

• Decision Date: 02 October 1922
• Docket Number: No. 37.,37.
• Citation: 189 N.W. 899,220 Mich. 278
• Parties: BOHM et al. v. SILBERSTEIN et ux.
• Court: Michigan Supreme Court

220 Mich. 278

189 N.W. 899

BOHM et al.

v.SILBERSTEIN et ux.

No. 37.

Supreme Court of Michigan.

Oct. 2, 1922.

Appeal from Circuit Court, Wayne County, in Chancery; Burton L. Hart, Judge.

Suit in chancery by George E. Bohm and others against Abraham Silberstein and wife. Decree for plaintiffs, and defendants appeal. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Fixel & Fixel, of Detroit, for appellants.

Welsh, Bebout & Kahn, of Detroit, for appellees.

SHARPE, J.

The record contains a stipulation that ‘the opinion of the court may be considered and taken as the agreed statement of facts.’ We quote from it:

‘Plaintiffs in their bill pray that defendants be restrained from erecting certain store buildings. Plaintiffs claim that such action on the part of defendants would be illegal on account of certain district restrictions.

‘Defendants contend for the right so to do: First, because said restrictions have been waived and abandoned; second, changed conditions have nullified the restrictions.

‘The restricted area is known as ‘Stevens subdivision.’ It is included in the east and west boundaries of Oakland and Woodward awenues. The north boundary is McLean avenue, and the south boundary is an alley, which alley is about one-half block north of Tennyson avenue. This area is crossed by the following north and south streets, east of Woodward avenue, in the order named: John R, Brush, and then Oakland. John R and Brush have no street cars upon them within this district, and Brush street is unpaved. Woodward and Oakland have double street car tracks upon them, and they extend to the Ford plant, and are thoroughfares beyond it. Brush and John R streets extend to the Ford plant only. The Ford plant is ten blocks distant from this area. Crossing the subdivision east and west are the following streets in order named: Commencing at the south end, Connecticut, California, Massachusetts, Rhode Island, Colorado, and McLean. The subdivision was laid out in 1906 and 1908.

‘Each deed of the lots within the subdivision, limits the use thereof to a single dwelling house of two or more stories and the necessary outbuildings. The dwellings between Woodward and John R are to cost not less than $4,000; between John R and Brush not less than $3,000; between Brush and Oakland not less than $2,000. The subdivision contains good substantial homes, but those east of Brush are not as fine and of as high a grade as those west of Brush street. Defendants' lot is at the northwest corner of California and Oakland. Defendants propose to erect the stores facing Oakland avenue.

‘I find under the evidence that there has not been a waiver or abandonment of the restrictions. However, the various uses may be considered as bearing on the changed conditions of the locality.

‘Hastings street, which is a business street of Detroit, ends at the boulevard. Extending north from the boulevard, Oakland avenue may be said to be a continuation of Hastings street. Oakland avenue is principally a street of business, with stores lining both sides. It has a double track car system thereon. On the east side of Oakland avenue, opposite the south end of this subdivision, is a block of stores and the Highland Park State Bank. On the west side of Oakland avenue, and immediately south of this subdivision, is a picture house covering the entire block. * * *

‘The entire length of the east side of Oakland avenue, opposite this subdivision, is occupied by a public school, its playground, and the Maxwell Motor Company. Immediately north of these, and on the east side of Oakland avenue, is a coal office, coalyard, and engine house. The comes vacant property. The west frontage on Oakland avenue, in the subdivision, is either vacant along the street, or else small frame or cement garages are built. A large part of the trucking from the Ford plant is carried on on Oakland avenue. Milk trucks bring milk each day from the north to a milk station on Oakland avenue, which milk station is south of this subdivision. Work trains and freight trains pass daily up and down Oakland avenue, as well as cars for passengers. Quite a few people in the subdivision, especially east of Brush street, take in roomers, and some of them boarders. Some garages are rented. * * *’

In the opinion filed the trial court found that the ‘changed conditions have removed the restrictions,’ and concluded that the bill should be dismissed. In an amended opinion filed after reargument and before the decree was signed, he called attention to the recent case of McQuade v. Wilcox, 215 Mich. 302, 183 N. W. 771, 16 A. L. R. 997, and that of Swan v. Mitshkun, 207 Mich. 70, 173 N. W. 529, therein cited. He found these cases controlling, and granted the relief prayed for. From the decree entered defendants appeal.

1. It is defendants' claim that the purpose of the...