French v. White Star Ref. Co.

• Citation: 229 Mich. 474,201 N.W. 444
• Decision Date: 31 December 1924
• Docket Number: No. 22.,22.
• Parties: FRENCH et al. v. WHITE STAR REFINING CO.
• Court: Michigan Supreme Court

229 Mich. 474

201 N.W. 444

FRENCH et al.

v.WHITE STAR REFINING CO.

No. 22.

Supreme Court of Michigan.

Dec. 31, 1924.

Appeal from Circuit Court, Wayne County, in Chancery; John H. Goff, Judge.

Action by Ricardo D. French and others against the White Star Refining Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Henry C. Bogle, of Detroit, for appellant.

E. A. Fink and Lodge & Brown, all of Detroit (Sherman D. Callender, of Detroit, of counsel), for appellees.

BIRD, J.

This bill was filed to restrain defendant from erecting a gasoline filling station on the northeast corner of East Grand boulevard and Ferry avenue, on the theory that the location was one restricted to residential purposes. The trial court was impressed with the plaintiffs' contentions, and enjoined defendant as prayed. The principal contentions of defendant are: (1) That the locus in quo is not restricted to residential purposes. (2) That, if it has been restricted to residential purposes, the restrictions have been waived.

It appears from the record that the land constituting the subdivision in question was owned in 1863 by George Beste. In that year he died, leaving a widow, two boys, and two girls. In 1881 the mother and children platted the same, and duly recorded it. It was subdivided into 20 lots, numbered from 1 to 20, situate on the east side of East Grand boulevard. The lots, by the original plat, were 256.8 feet in depth by 82.70 feet in width. About the year 1886, 50 feet were taken off from the west end of these lots, for the purpose of widening East Grand boulevard. This left the lots fronting on the boulevard 206.8 feet in depth. Subsequently, an alley 18 feet in width, running north and south, was put through the subdivision, north of Ferry avenue. This deduction left the lots on East Grand boulevard 100 feet in depth, and those on the east side of the alley 88.8 feet in depth, fronting on Field avenue. The lots were divided between the four children, but subsequently the daughters of George Beste conveyed their lots to the sons, Anthony and Joseph. Some time in the 80's the lots were subdivided into smaller lots.

Recently, the defendant leased from Frank Schaefer the north 41.40 feet of lot 7, and started to construct a gasoline filling station. This lot was conveyed by Joseph Beste in 1919 to Frank Schaefer. The deed contained the following restriction: ‘That no building shall be erected thereon other than for dwelling purposes only.’ There was no restriction in Schaefer's lease to defendant, but defendant admits in open court that it had actual knowledge of the restriction in the deed from Beste to Schaefer. There were no building restrictions in the original plat which was recorded, but the restrictions appear in the deeds to certain of the lots sold by the Beste heirs. Some of the lots were sold without any restrictions. Counsel relies upon this fact to establish his contention that the territory is not restricted.

In Allen v. City of Detroit, 167 Mich. 464, 133 N. W. 317,36 L. R. A. (N. S.) 890, we said:

‘That a portion of the conveyances do not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them and others not, if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, and acted upon by all in interest, it is binding and enforceable on all inter se. It goes with the land, and is equally binding on all purchasers with notice’-citing 5 Amer. & Eng. Ency. of Law (2d Ed.) 3; Tallmadge v. East River Bank, 26 N. Y. 105;Trustees v. Lynch, 70 N. Y. 440, 26 Am. Rep. 615;Lewis v....