Buckley v. Mooney, 86

• Decision Date: 06 April 1954
• Docket Number: No. 86,86
• Parties: BUCKLEY et al. v. MOONEY et al.
• Court: Michigan Supreme Court

Page 655

63 N.W.2d 655

339 Mich. 398

BUCKLEY et al. v. MOONEY et al.

No. 86.

Supreme Court of Michigan.

April 6, 1954.

Howlett, Hartman & Beier, Pontiac, for Edward M. Buckley, and Agnes M. Buckley, his wife, and Frank J. DuFrain and Mildred D. DuFrain, his wife, plaintiffs and appellants.

George A. Cram and Monaghan, Hart & Crawmer, Pontiac, for defendants and appellees, Edward Mooney and Giles L. Bartol.

Glenn C. Gillespie, Pontiac, for impleaded defendants and appellees, Caleb E. Summers and Ruth M. Summers.

Before the Entire Bench.

CARR, Justice.

I am not in accord with the conclusion reached by Mr. Justice REID who has written for reversal. The material facts are set forth in his opinion. The determination of the primary question at issue turns on the construction to be given to the language of the conveyance by defendants Summers to Mr. and Mrs. Buckley, herein referred to as the plaintiffs, on October 14, 1941. At that time the grantors were the owners of a large tract of land in the village of Orchard Lake, that in previous years had been used principally for agricultural purposes. No part of it had been subdivided, but apparently the owners had in mind a subdivision of at least a portion of the property, or its division into parcels to be used for the purposes of single residences with appurtenances deemed essential to county homes. The record indicates that the parcel conveyed to the plaintiffs was the first one sold.

Does the language of the deed indicate that it was the intention of the parties at the time that the remainder of the tract, subject to the specified exceptions, should while owned by the grantors be subject to the restrictive covenants set forth in the coveyance to plaintiffs, or, as determined by the three judges who heard the matter in the circuit court, was the expressed undertaking on behalf of defendants Summers to insert such restrictions in conveyances of lots or parcels in the tract that they might execute in the future in the nature of a personal covenant merely? The provisions in question must be interpreted in the light of the situation then existing and of the results sought to be accomplished. If the land retained by the Summers following the conveyance became immediately subject to the restrictions under the reciprocal negative easement theory, the conclusion follows that they could not have used their property for the purposes for which it had been previously used, or otherwise than for a single residence and other buildings incident to a country home. It is significant that the agreement was in terms that the restrictions should be inserted in future conveyances of lots and parcels. The parties did not see fit to provide specifically that the balance of the tract should be, while still owned by the Summers, subject thereto. The language used may not fairly be interpreted as indicating any such purpose or intent.

Plaintiffs do not claim the existence of any general plan of development. As specifically set forth in the brief of their counsel, they do not ask relief on the basis of any such plan. Neither do they contend that the facts of the case justify a conclusion that the restrictions which they seek to have enforced on the land retained by the Summers were created by implication. It is conceded that Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 60 A.L.R. 1212, and Arlt v. King, 328 Mich. 645, 44 N.W.2d 195, are distinguishable from the instant controversy on this ground. A like comment may be made with reference to other decisions resting on the theory of reciprocal negative easements by implication.

It is the position of plaintiffs on this appeal that the language of the conveyance to them created legal rights in the nature of easements in the property retained by their grantors, other than the land expressly excepted. In support of their contention they rely on McQuade v. Wilcox, 215 Mich. 302, 183 N.W. 771, 16 A.L.R. 997. There the defendant being the owner of farm land near Royal Oak platted a portion of it and recorded the plat. The property was designed to be a high-class residential subdivision, and its character was advertised for the benefit of prospective purchasers. A 'general plan was adopted to make it a high-class restricted residential district.' Substantial homes were constructed on lots in the subdivision, which were sold subject to single residence restrictions. An additional subdivision was platted adjoining the one in question. Defendant retained the ownership of lot 2 in the plat of the first subdivision. After substantially all of the lots in the subdivision had been sold and expensive residences erected thereon, defendant entered into a contract for the sale of lot 2 to be used for restaurant or cafe purposes. The court found that by her deeds defendant had covenanted that the restrictions imposed were 'for the benefit of all present and future owners.' It was pointed out that defendant was the 'present owner' of lot 2, and that she had by the conveyances executed by her imposed on her lot the same restrictions that she had imposed on others.

The factual situation in the case at bar is materially different from that in the McQuade case. We are not dealing here with a situation involving subdivided property, many lots in which had been sold for exclusive residential purposes under restrictions to which all present and future owners were expressly subjected. Rather, we have a conveyance of a parcel from a farm, the owners of which agreed that in making future conveyances of lots or parcels therefrom they would insert the restrictions in question. It may be noted in this connection that had the parties subjected the land retained by the Summers, except as specified, to the restrictions it would not have been necessary to specifically provide for putting the restrictions in future contracts and deeds. The parties did not elect to impose such restrictions on the land retained by the grantors while owned by them. Had they done so, it is obvious that the recording of the deed would have resulted in constructive notice thereof to any subsequent purchaser of a lot, or parcel of land, within the limits of the tract in question, except in the westerly 20 acres thereof or in the business and boat basin area. They did not follow such course, but inserted in lieu thereof the agreement with reference to future conveyances of lots and parcels from the farm.

Plaintiffs also rely on Phillips v. Lawler, 259 Mich. 567, 244 N.W. 165, 166. There suit was brought by the plaintiff to annul an easement and to remove building restrictions, plaintiff relying in part on provisions of the zoning ordinance of the city of Lansing claimed to be in conflict with the restrictions in question. The claim was rejected by this Court. The greater part of plaintiff's property was sold in 1923 by the then owners, together with an easement over land retained by the grantors, subject to the following agreement:

"Said first parties further agree for themselves, their heirs, grantees and assigns, as a condition to the sale of the premises herein deeded to second party, that after the Rug Factory, which is now owned and operated by first parties on the premises retained and owned by them and being immediately to the North of said above described easement, is no longer used by first parties for business in connection with a Rug Factory, that thereafter no building nor structure shall be used, built or maintained thereon for any purpose except for a private residence and a private garage either in connection with the residence or built separately therefrom."

It will be noted that the language of the conveyance expressly subjected land retained by the grantors to the restricted use. The language of the conveyance left no doubt as to the intention of the parties. The grantors expressly undertook to impose on land that they continued to own, and during such time as they continued their ownership, the easements in question. Because of the facts involved, the Phillips case is not controlling in the present controversy.

Attention is also directed by counsel to Finley v. Glenn, 303 Pa. 131, 154 A. 299, 300. There the conveyance involved required that the grantors should impose the building restrictions recited therein upon all their other lots or pieces of ground fronting on a designated street. The deed also recited that "it is mutually understood that the above restrictions are not to apply to or bind any other land of the said grantors excepting the above mentioned lots". The language quoted clearly indicates an intent that the building restrictions set forth in the conveyance should bind the specified land of the grantors.

Each case of this nature must be determined with reference to its own facts. The controlling factor in each instance is the intention of the parties as indicated by the language of the conveyance or agreement involved, construed in the light of the general purpose indicated and the circumstances of the case. Certain general principles have, however, been established by prior decisions of this Court. In Denhardt v. De Roo, 295 Mich. 223, 228, 229, 294 N.W. 163, 165, it was said:

'The burden of establishing the restrictions by way of reciprocal negative easement is on plaintiffs. Fenwick v. Leonard, 255 Mich. 85, 237 N.W. 381; Grant v. Craigie, 292 Mich. 658, 291 N.W. 44.

"Courts of equity do not aid one man to restrict another in the use to which he may put his property unless the right to such aid is clear.' Casterton v. Plotkin, 188 Mich. 333, 154 N.W. 151, 155.

'it has been said that only under unusual circumstances will the use of property be restricted other than by provisions in the conveyance on which the title rests. Miller v. Ettinger, 235 Mich. 527, 209 N.W. 568; Kime v. Dunitz, 249 Mich. 588, 229 N.W. 477. Where there is no express restriction in the chain of title of the particular lot the use of which is sought to be restricted,...