Carey v. Lauhoff

• Decision Date: 17 March 1942
• Docket Number: No. 13,January term.,13
• Parties: CAREY et al. v. LAUHOFF.
• Court: Michigan Supreme Court

301 Mich. 168

3 N.W.2d 67

CAREY et al.

v.LAUHOFF.

No. 13, January term.

Supreme Court of Michigan.

March 17, 1942.

Suit by Matthew Carey and others against Gertrude Lauhoff to enforce a building restriction, in which Seyburn Avenue Association intervened as party plaintiff. Decree for plaintiffs, and defendant appeals.

Affirmed.Appeal from Circuit Court, Wayne County, in Chancery; Frank Day smith, judge.

Before the Entire Bench, except WIEST, J.

Walter Schweikart and Julien Winterhalter, both of Detroit, for appellant, Gertrude Lauhoff.

Leonard F. Donaldson, of Detroit, for appellees.

NORTH, Justice.

On March 7, 1940, defendant Gertrude Lauhoff brought on contract the property located at 1458 Seyburn Avenue, Detroit, Michigan, for the purpose of operating a rooming house. It is admitted her land contract contained the following restriction: ‘No building except a single dwelling house costing not less than $2,500 and to be placed not nearer that 20 feet to the front line of said lot, together with the necessary outbuildings going with it, shall be erected or maintained upon the premises herein described.’

Restrictions of somewhat similar purport were included in the deeds from the subdivider to the various grantees. On March 12, 1940, defendant received a letter from an attorney for plaintiffs, land owners in the subdivision, which warned her of the restriction and threatened legal action unless she complied with it. She had also received a notice of like character at an earlier date. On April 22, 1940, plaintiffs Carey, Buell and McEnally brought suit to enforce the restriction; and on June 28, 1940, the Seyburn Avenue Association obtained leave to intervene as a party plaintiff. In the trial court plaintiffs were decreed relief. Defendant has appealed.

On the facts as above stated, it would seem that plaintiffs have a clear right to enforce the restriction. However, defendant pleaded the usual defenses in restriction suits, i. e., changes in neighborhood, and waiver or laches. Relative to changes in neighborhood, defendant stresses four aspects of this record: ‘First, the restrictions imposed upon the subdivision were not uniform; second, a general plan of development was not maintained; third, commercial establishments have been permitted; and fourth, rooming houses have been established for a long time.’ Under the defense of waiver or laches, the claim is that plaintiffs permitted rooming houses to exist for such length of time (since 1925) as to make them guilty of laches.

In deciding cases involving restrictive covenants, we have announced and observed various rules. One is that the cases present such wide difference in facts that, in equity, but few rules can be universally or even generally applied. In the main, each case must be determined on its own facts. Putnam v. Ernst, 232 Mich. 682, 206 N.W. 527. Also, restrictions are not favored in law; they will be construed as found. Putnam v. Ernst, supra. But the primary rule is this, as cited by Justice Butzel in Taylor Avenue Improvement Ass'n v. Detroit Trust Co., 283 Mich. 304, 278 N.W. 75, 78: ‘As a rule, we will uphold a restriction wherever it remains of any substantial benefit to the parties objecting to its violation, provided they are not estopped by their conduct from making such objection.’ See Swan v. Mitshkun, 207 Mich. 70, 76, 173 N.W. 529, 531: ‘* * * it is the policy of the courts of this state to protect property owners who have not themselves violated restrictions in the enjoyment of their homes and holdings, free from inroads by those who attempt to invade restricted residential districts and exploit them under some specious claim that others have violated the restrictions, or business necessities nullified them.’

Defendant's first and second grounds of defense are not tenable. The rule in this State is that restrictions need not be uniform nor follow a general plan to the extreme; the common grantor can release certain lots and vary the restrictions. See Farley v. Finn, 226 Mich. 205, 209, 197 N.W. 571;Harvey v. Rubin, 219 Mich. 307, 189 N.W. 17;Frink v. Hughes, 133 Mich. 63, 94 N.W. 601.

We may consider the remaining defenses collectively, i. e., that commercial establishments have been permitted in the area and that rooming houses having been established for a long time so as to show a change in the neighborhood and waiver or laches by plaintiffs.

Defendant charges that there are or have been twenty-three rooming houses on Seyburn Avenue and that there had been repeated violations and waivers of the restrictive covenants by permitting the erection of a hospital, double houses, flats, terraces, apartments, a church and maintainance of doctors' and dentists' offices. Also, in June 1934, defendant had rented the premises in question, at 1458 Seyburn Avenue, and maintained a rooming and boarding house there until October 15, 1937, when she purchased premises located at 1085 Seyburn Avenue where she then ran and now runs a rooming and boarding house.

The court below found, however, that there was no outward appearance showing or tending to show that Seyburn Avenue has changed in character from a strictly high-class residential street to a business or rooming house section. An examination of the testimony sustains this finding, though there is some testimony to the contrary of not too convincing nature. The fact is that the neighborhood still remains substantially residential. This justifies plaintiffs' contention that though some businesses admittedly have been established, these do not operate to preclude plaintiffs from seeking to enjoin the defendant from establishing a...