Broeder v. Sucher Bros.

• Decision Date: 01 October 1951
• Docket Number: No. 26,26
• Parties: , 30 A.L.R.2d 554 BROEDER et al. v. SUCHER BROS., Inc., et al.
• Court: Michigan Supreme Court

Page 314

49 N.W.2d 314

331 Mich. 323, 30 A.L.R.2d 554

BROEDER et al. v. SUCHER BROS., Inc., et al.

No. 26.

Supreme Court of Michigan.

Oct. 1, 1951.

Davidson & Theut and Dorothy E. Broeder, Detroit, for plaintiffs.

Axford, Cashen & Baird, Detroit, for appellee Sucher Bros., Inc.

Abraham Satovsky, Detroit, for appellee Ruth Sherman.

Before the Entire Bench.

CARR, Justice.

This is a suit for injunctive relief. The bill of complaint filed by the plaintiffs in circuit court alleges that they are the owners of lots in College Park Manor subdivision of part of S. 1/2 of S.W. 1/4 of Sec. 8, Town 1 South, Range 11 East, Greenfield Township, Wayne County. The plat of said subdivision indicates that it is bounded on the north by Outer Drive, on the east by Meyers Road, on the south by Six Mile Road West, now McNichols Road, and on the west by Mennier Road, now known as Schaefer Road. Plaintiffs allege in their pleading that the conveyances of lots in said subdivision contained restrictions requiring that any building on any lot fronting on McNichols Road or Schaefer Road must be erected not nearer than 10 feet to the 'front lot line', and that no building erected on any lot in the subdivision shall be nearer the side lot line than is permitted by the building code of the City of Detroit.

Plaintiffs' lots front on Schaefer Road. The defendant Sucher Brothers, Inc., has acquired several lots that front on McNichols Road, and is purchasing under contract from defendant Sherman Lot 50, located at the intersection of McNichols and Schaefer Roads, with a frontage of 23 feet on the former and extending 100 feet along the latter. It began operations on the lots so acquired in the late summer or early fall of 1947 for the erection of a building to be used for stores. The work was continued from time to time, the west wall of said building being located on, or approximately on, the property line on the east side of Schaefer Road. The instant suit was started on May 27, 1948, plaintiffs claiming that defendants were violating the restrictive covenants referred to in their bill of complaint.

On the trial of the case in circuit court plaintiffs urged that Lot 50 must be regarded as fronting on both McNichols Road and Schaefer Road, and, therefore, that the corporate defendant could not put any part of its building, or series of buildings, within 10 feet of the latter thoroughfare without being guilty of a violation of the restriction set forth in the deeds. Reliance was placed on the doctrine of reciprocal negative easements, plaintiffs' theory apparently being that, since the lots that they had purchased in the subdivision fronting on Schaefer Road, were subject to the restriction, forbidding building within 10 feet of the property line on said road, Lot 50 was likewise burdened. Apparently some reliance was also placed on the fact that the recorded plat showed a dotted line along Schaefer Road indicating that the building line on all lots, including Lot 50, was 10 feet east of the property line.

The trial court rejected the claim of the plaintiffs with reference to the interpretation of the restriction in question as applied to Lot 50, holding that said lot fronted on McNichols Road with its side line on Schaefer. The court concluded that the facts in the case did not justify the application of the doctrine of reciprocal negative easements, and, citing Kime v. Dunitz, 249 Mich. 588, 229 N.W. 477, that the line on the plat could not be given the force and effect of a restrictive covenant. A decree was entered denying the relief sought and dismissing the bill of complaint. Plaintiffs have appealed, asserting that the trial judge was in error in his interpretation of the restrictive covenant in question and that relief should have been granted on the theory of a reciprocal negative easement to which Lot 50 was subject. By stipulation of the parties the appeal has been dismissed as to defendant Sherman.

The principal question at issue is the meaning of the restriction as set forth in the deeds. As we understand their position, appellants do not now claim that the line on the plat, above referred to, can be given effect as a restrictive covenant. As a general proposition such covenants are construed strictly against grantors and others claiming the right of enforcement. All doubts are resolved in favor of the free use of property. Moore v. Kimball, 291 Mich. 455, 289 N.W.213; Wood v. Blancke, 304 Mich. 283, 8 N.W.2d 67. Courts of equity will not grant relief in cases of this nature unless the right thereto is clear. Casterton v. Plotkin, 188 Mich. 333, 154 N.W. 151. Had it been the intention of the original owner and subdivider to treat corner lots in the subdivision as fronting on both of the contiguous streets or highways, it would have been a simple matter to express such intent in clear and unambiguous language. We think that the trial judge was right in concluding that such purpose may not be inferred from the language used. The word 'front' as used in the restriction must be given its ordinary significance.

In Tear v. Mosconi, 239 Mich. 242, 214 N.W. 123, 124, the owner of a corner lot in Ford Park subdivision in Detroit sought to treat it as fronting on each of the intersecting streets, one of which was Parkside Avenue. Restrictions of record prohibited the construction of buildings other than single residences on said thoroughfare. Defendant sought to erect a two-story brick building on the corner, with six stores...