Farley v. Finn

• Decision Date: 05 March 1924
• Docket Number: Jan. Term.,No. 44,44
• Citation: 197 N.W. 571,226 Mich. 205
• Parties: FARLEY et al. v. FINN et al.
• Court: Michigan Supreme Court

226 Mich. 205

197 N.W. 571

FARLEY et al.

v.FINN et al.

No. 44, Jan. Term.

Supreme Court of Michigan.

March 5, 1924.

Appeal from Circuit Court, Wayne County, In Chancery; Clyde I. Webster, Judge.

Suit by Robert E. Farley and others against Harold R. Finn and others. Decree for plaintiffs, and defendants appeal. Affirmed.

Argued before CLARK, C. J., and BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Renaud, Hulett & Wing, of Detroit (Ralph B. Wilkinson, of Detroit, or counsel), for appellants.

Leo J. Carrigan, of Detroit (Harrison Geer, of Detroit, of counsel), for appellees.

STEERE, J.

Defendants appeal from a decree of the Wayne county circuit court in chancery, restraining them from erecting a 57-family apartment building on property located at the northwest corner of Lawton avenue and West Grand boulevard being in Norton & Beasley's subdivision of a portion of quarter section 53, 10,000-acre tract, in the city of Detroit.

This subdivision consists of two long blocks lying on the north side and facing the Grand boulevard, extending east and west from Wildemere to Linwood avenues, separated from each other by Lawton avenue, which connects with and extends north from Grand boulevard. Each of these blocks is over 800 feet long.

As originally platted, this subdivision consisted of one continuous block, but later was divided into two blocks by the opening of Lawton avenue 60 feet in width, which took all of lot 15 and a small portion of lots 14 and 16. The property involved here is in the east end of the first block, on the west side of Lawton avenue. It comprises lot 14 and easterly half of lot 13 of said block, which contains 14 lots counting the remaining west half of lot 13. Lot A is at the extreme west next to Wildemere avenue. Most of the lots in this subdivision are 50 feet in width and all of the same depth, extending 204.75 feet north from the boulevard, to an alley in the rear.

The original plat of the subdivision showed no restrictions, but restrictions were imposed upon most of the lots in deeds given as they were sold by the original grantors. The restrictions varied more or less in phraseology; some of the variations being as follows: ‘For residence purposes only;’ ‘except for single residence purposes only;’ ‘for dwelling houses and their appurtenances;’ ‘for dwelling purposes;’ ‘a dwelling house.’ The variation most important in this litigation is between ‘residence purposes' and ‘dwelling house.’ The restrictions imposed upon the site of the proposed apartment building relied on by plaintiffs are:

‘The premises are to be occupied only for dwelling house and appurtenances including proper outbuildings. No dwelling house is to be erected or placed on either lot to cost less than $2,500 and stand not less than 50 feet back from the outer edge of the boulevard.’

Of the plaintiffs, Robert E. Farley and wife own the property next west of defendants' upon which they have a single dwelling house; the restrictions on their property being ‘only for dwelling houses and their appurtenances.’ Frank C. Corrigan and wife adjoin them on the west, and they in turn are joined by plaintiff Hartwig. All live with their families on their respective lots and have strictly complied with the restrictions imposed upon them. All lots in said block are built upon and occupied except defendants'. The first eight buildings west of defendants' property are single dwellings. The next is a 4-family residence, beyond which are three single dwellings, west of them are three 2-family residences and on lot A, next to Wildemere avenue, is a 6-family residence. The testimony supported by verified photographs and a plat of the property fully sustains the following findings of the trial judge:

‘It will thus be seen that the first eight buildings west of the property of the defendants are all single residences. They are all nice residences worth in excess of $20,000 each. I have personally visited these premises several times. The entire block has a very fine appearance. Not only are these single residences fine and expensive buildings, but the 4-family and the three 2-families are also, and all really have the appearance of single dwellings. The only building to detract at all from the appearance of the entire block is the 6-family at the extreme west end of the block, at the corner of Wildemere. There has been no violation of the restrictions in this block that I can find. Single residences have been built where flats might have been built, but every lot in this block which is restricted to a single residence, or to a dwelling house, has a single residence upon it. The restriction that the building shall be 50 feet back from the front lot line has also been uniformly observed, and there is practical uniformity, much more than usual, in the distances that the front porches extend into this restricted area.’

The substance of the contentions urged for defendant against the decree appealed from is that none of the lots in the subdivision is burdened with restrictions which ‘will prohibit the erection of the 57-apartment building contemplated.’ If they were, ‘appellees and all other property owners in said subdivision have waived the right to enforce them;’ and that the case of Teagan v. Keywell, 212 Mich. 649, 180 N. W. 454, involving the erection of an apartment building on a lot east of Lawton avenue, in the other block of this subdivision, is res adjudicata.

This court has so recently and often had occasion to discuss the subject of building restrictions involving questions similar to those raised here that it seems unnecessary to discuss at length the subjects reviewed in those decisions. This court has several times held in the last few years that failure of an owner in restricted territory to take action for prevention of violations in other blocks or on other streets in the restricted district does not necessarily deprive him of the right of enforcing the restrictions when a violation is attempted in...