Boston-Edison Protective Ass'n v. Goodlove

• Citation: 227 N.W. 772,248 Mich. 625
• Decision Date: 03 December 1929
• Docket Number: No. 107.,107.
• Parties: BOSTON-EDISON PROTECTIVE ASS'N et al. v. GOODLOVE.
• Court: Supreme Court of Michigan

248 Mich. 625

227 N.W. 772

BOSTON-EDISON PROTECTIVE ASS'N et al.

v.GOODLOVE.

No. 107.

Supreme Court of Michigan.

Dec. 3, 1929.

Appeal from Circuit Court, Wayne County, in Chancery; De Witt H. Merriam, Judge.

Action by the Boston-Edison Protective Association and another against Paul C. Goodlove. Decree for plaintiffs, and defendant appeals. Modified, and as modified affirmed.

Argued before the Entire Bench, except BUTZEL, J.

Edward N. Barnard, of Detroit, for appellant.

Frank B. Ferguson and R. Wendell Brown, both of Detroit, for appellees.

NORTH, C. J.

Boston-Edison Protective Association, plaintiff herein, is a Michigan corporation. Campbell H. Leith, also a plaintiff, is its president. The members of the association consist of residents of the blocks on Atkinson, Edison, and Longfellow avenues and Chicago and Boston boulevards, lying between Hamilton boulevard and Linwood avenue, Detroit, Mich. One of the purposes of the association is to enforce the building restrictions in the aforesaid area.

Defendant is the owner of and resides in a beautiful, large two-story brick residence, with spacious grounds around it, at the northwest corner of Edison avenue and Hamilton boulevard; the property being known as lot 110 of Boston Boulevard subdivision. The deed of each lot owner in said subdivision contains restrictive covenants as follows:

‘It is mutually understood and agreed by and between the parties hereto for themselves and their respective heirs, legal representatives and assigns, that this conveyance is expressly subject to the following agreements. covenants and restrictions, which agreements, covenants and restrictions run with the land and relate to the entire Boston boulevard subdivision and provide a uniform plan for the improvement of said entire subdivision. No structure shall be built upon any lot in said subdivision except single dwelling houses, having at least two (2) full stories with at least 18-foot studding or posts, and all ceilings of full height and their appurtenant outbuildings. * * *

‘All houses shall have full basements of brick, stone or cement foundations, and there shall be no flat roofs. * * *’

The restrictions vary but slightly as to lot lines and other minor details. They are uniform as to restricting the property to single dwelling houses and in providing for substantial residences on the lots. The entire neighborhood has been built up as a fine residential district. The circuit judge stated in his opinion: ‘It is perhaps the choicest private residential district within the territorial limits of the city of Detroit.’

Defendant is a practicing physician and has used his home, without objection, as a doctor's office. There is an entrance to it from Hamilton boulevard, on which it also fronts. His testimony shows that at one time he resided and conducted his office at the house on the corner of Atkinson avenue and Hamilton boulevard, in the same subdivision, and that there was no objection raised. This property is now being used as a residence and doctor's office by another physician.

Hamilton boulevard is a busy thoroughfare on which there are street car tracks. It runs along the east side of the said subdivision. Both north and south of the subdivision there are stores on Hamilton boulevard. There is a large hospital fronting on Hamilton boulevard, a short distance below the subdivision. However, for almost the solid five blocks of the subdivision from Atkinson avenue to the middle of the block that the north side of Boston boulevard borders on, there are no stores or any other business places.

All of the owners of the lots in the said subdivision have rigidly adhered to the restrictions and to the general plan of keeping the entire subdivision as a beautiful residential section. There have been no encroachments of business in the subdivision, except that another doctor and plaintiff practice medicine in their respective homes.

In order to take care of his increasing business, defendant has begun the erection of a one-story office building in the rear of his residence. The building was to contain an X-ray room, medical library, waiting room, and doctor's office. Said structure in no respect conforms with the building restrictions. Its purpose is to provide defendant with business offices, so that the property may be used for business purposes. This is in violation of both the letter and spirit of the restrictions of the subdivision.

Plaintiffs brought this action to restrain the erection of the said building and the use of it for business purposes. The lower court decreed that the property was restricted, and permanently enjoined defendant from proceeding with the erection of a building in violation of the restrictions and from using said premises for a doctor's office in a different manner than it had been previously used.

Defendant has appealed, and claims that the restrictions were waived through plaintiffs' acquiescence in permitting the use of his home as a doctor's office, and also the like use of the property at the corner of Atkinson avenue and Hamilton boulevard. He also claims that the character of Hamilton boulevard has so changed that it has become a business street, and that therefore the restrictions on the Hamilton boulevard frontage are no longer of any force and effect.

While it is true that there has been no objection made to the defendant's practicing medicine at his home and using it as a doctor's office where patients consulted him, nevertheless the defendant should not be able to violate further rights of plaintiffs on account of his theretofore slight breach of the restrictive covenants in nis deed. Plaintiffs are not estopped from preventing a most flagrant violation of the restrictions on account of their theretofore failure to stop a slight deviation from the strict letter of such restrictions. While it is true that by their acquiescence they may not be able to enjoin defendant from continuing to use his present home to the extent that it has been heretofore used as a doctor's office, they are still in a position to stop the more serious violation of the restrictions that would result from the erection of a new or adjoining building, one story in height, without basement, etc., which does not conform with the restrictions of the subdivision. A covenant restricting the erection of any building, except for dwelling house purposes, applies to the use as well as to the character of the building. 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;Bagnall v. Young, 151 Mich. 69, 114 N. W. 674;Schadt v. Brill, 173 Mich. 647, 139 N. W. 878,45 L. R. A. (N. S.) 726;Kingston v. Busch, 176 Mich. 566, 142 N. W. 754;Killian v. Goodman, 229 Mich. 393, 201 N. W. 454;Holderness v. Finance Corporation, 241 Mich. 604, 217 N. W. 764;Tuttle v. Ohio Boulevard Land Co., 245 Mich. 188, 222 N. W. 171;Seely v. Phi Sigma Delta Corp., 245 Mich. 252, 222 N. W. 180; and many other cases.

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