Cooper v. Kovan, 16
| Decision Date | 04 September 1957 |
| Docket Number | No. 16,16 |
| Citation | 84 N.W.2d 859,349 Mich. 520 |
| Parties | Frank E. COOPER, Margaret Cooper, James Prendergast, Doris Prendergast, Wilfred Oliver, Norma Oliver, Donald Hellenburg, Doris Hellenburg, Walter Etheridge, Mary Jane Etheridge, Phillip Brezenski, Donald Kunkel, Alfred Loffreda, Ray Biecker, Joseph Schwartz, Anna Schwartz, W. Lanqusch, Joseph Keller, Harold Iwankovitsch, Raymond Knight, Benny D'Annunzio, Joseph Fresard, R. C. Harrison, Gerald Gross and Joseph Messina, Plaintiffs and Appellants, v, Flora KOVAN, Samuel Kutzen and Ann Kutzen, Defendants and Cross-Appellants, and M. N. Schostak, Schostak Brothers and Company, a partnership, and Schostak Brothers and Company, a corporation, jointly and severally, Defendants and Appellees. |
| Court | Michigan Supreme Court |
McGraw, Lynch, McInally & Ferguson, Detroit, for plaintiffs and appellants.
David M. Miro, Detroit, for defendants, appellees and cross-appellants.
Before the Entire Bench, Except BOYLES, J.
The plaintiffs in this instance are residential property owners in the Michael and John Sprenger Subdivision in the immediate vicinity of the property formely occupied by Eastwood Park. This major amusement center was operated from the 1920's down to recent years on the unsubdivided northeast corner of Eight Mile Road and Gratiot Avenue. Immediately adjacent to the unsubdivided and unrestricted plot upon which Eastwood Park buildings were constructed, lay approximately 3 1/2 subdivided blocks of vacant land containing 82 lots which, during all of the latter years of the park's operation, were owned by the owners of the park property and had (to a disputed degree and somewhat sporadically) been used in conjunction therewith for such things as picnicking, fireworks, and, more usually, parking.
These 3 1/2 blocks had been platted in 1924 as a part of the Sprenger Subdivision. They are shown on plaintiffs' exhibit 3 and may be referred to as 'the disputed area.' Thereafter, in the 1920's and again in 1944, 2 separate attempts to restrict these blocks to residential use were made. The legal effect of both purported restrictions is hotly disputed in this suit. The chronology of crucial events leading up to this suit is shown as follows 1924--Michael and John Sprenger Subdivision platted, encompassing 482 lots. Some were later taken for highway expansion.
1926 to 1930--Original plattors executed 18 deeds containing certain restrictive provisions.
1939--(November 29) Practically all the lots now owned by plaintiffs and defendants reverted to the State of Michigan for nonpayment of taxes.
1944--(March 22) While the State still held title to these lots, the Land Office Board and the owners and land contract purchasers executed the controversial exhibit 37(a) restricting the subdivision to residential use. Three lots were not covered.
1944--(March 28) Exhibit 37(a) recorded in Macomb county, Liber 548, pp 83-89.
1954--(December 13) Disputed area rezoned from 'residential' to 'business and parking.'
About 1950 lengthy litigation pertaining to the operation of Eastwood Park resulted in termination of its operation. Eastwood Park Amusement Co. v. Mayor of East Detroit, 325 Mich. 60, 38 N.W.2d 77.
Subsequent to the termination of the operation of Eastwood Park, the owners of the park property and the 3 1/2 blocks in question sought a permit from the Board of Zoning Appeals of the city of East Detroit for the use of these 3 1/2 blocks in the construction of a major shopping center. According to the developers' plans, the buildings of the shopping center would extend well into the 3 1/2 blocks in question and the balance thereof would have been allocated to off-street parking.
Plaintiffs in the instant litigation filed their bill of complaint to seek the aid of a court in chancery to restrain the defendants from violating the residential restrictions upon this property which plaintiffs contend are still in force and effect. They rely, first, upon the terms of the 18 deeds executed in the 1926 to 1930 period by the original grantors and containing the following language:
'Nothing but a single dwelling costing not less than $5,000 or a multiple dwelling costing not less than $7,000 shall be erected on any lots situated between Gratiot and Elizabeth avenues except those fronting on Gratiot and Ego boulevard.'
The disputed area of this proceeding lies within the described boundaries.
In the alternative, plaintiffs rely upon exhibit 37(a) in the execution of which the original grantors, certain contract purchasers of most of the lots now in dispute, and the State of Michigan, through its Land Office Board, all joined--the latter after title to practically all of the lots reverted to the State for nonpayment of taxes in 1939.
As will be readily noted, the ambiguity of the words following 'Assessor's Sprenger State Sub.' provide still another issue.
The judge who heard this equity action was confronted by these issues pertaining to the claimed restrictions:
(1) Did the 18 deeds executed by original plattors between 1926 and 1930 create negative reciprocal easements that would be binding upon subsequent purchasers?
(2) Did reversion of title to the State in 1939 eradicate those restrictions?
(3) Did the covenant of 1944 serve to create effective restrictive easements?
a. Did the State Land Office Board have authority to execute this agreement?
b. Was the agreement too ambiguous to be enforced against defendants' 82 lots?
(4) Did the testimony at hearing warrant a finding that plaintiffs had abandoned the restrictions?
(5) Did the testimony at hearing indicate such a change of circumstances as to warrant a court in equity to decline to enforce the restrictions?
Judge Spier, in a long and careful opinion, found for the plaintiffs on all of the legal issues raised. He found that the property in question was subject to residential restrictions; that the restrictions were clear and unambiguous; that the action of the Zoning Appeals Board did not change or invalidate the restrictions; that the subdivision owners had not abandoned them or waived their right to enforce them. Finally, however, Judge Spier took a long look back at the history of this property, and an equally long look forward at the nature of the improvement planned, and held, in effect, that it was within the power of a court of equity to effect a compromise. This he accomplished by issuing a limited injunction against the defendants restraining them from using the easternmost 130 feet of the disputed property for anything except a green belt, and the next easternmost 100 feet of the disputed property for anything other than parking, and thereupon gave them free rein to proceed on the balance of the disputed property (and, of course, the unsubdivided property) to erect their shopping center. His decision has the peculiar merit of having left both sides completely dissatisfied, resulting in plaintiffs' appeal and defendants' cross-appeal.
On appeal of a chancery decree we hear the matter on the record de novo. But we give great weight to the chancellor's findings of fact. Hartka v. Hartka, 346 Mich. 453, Donaldson v. Donaldson, 134 Mich. 289, 96 N.W. 448. We note in this case the care with which the chancellor approached the factual dispute. We particularly approve in this building restriction dispute his personal viewing of the premises. After reviewing the record we find occasion to express entire approval of his view of the facts. We will subsequently be concerned with the application to those facts of verious legal principles.
We find no need to pass on the effect of the restrictive provisions of the 18 deeds executed in the 1920's. On review of this record and the exhibits, we agree with the judge who heard the matter that the covenant of 1944 created restrictions which are applicable to the disputed property. The State Land Office Board joined in the execution of these restrictions as it was empowered to do.
'Conveyances made by the state land office board or department of conservation to any purchaser shall be subject to any existing restrictions as to improvements and use of the property conveyed: Provided, however, That the board of department in behalf of the state of Michigan may execute any agreements establishing, extending, amending, altering or setting aside any such restrictions.' C.L.1948, § 211.359 (Stat.Ann.1950 Rev. § 7.959).
See, also, Municipal Investors Ass'n v. City of Birmingham, 298 Mich. 314, 299 N.W. 90; Young v. Thendara, Inc., 328 Mich. 42, 43 N.W.2d 58.
We likewise agree with the chancellor that the language of the restrictions applicable to the lots currently in dispute was clear and unambiguous:
The restrictions read:
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