De Galan v. Barak

• Decision Date: 04 June 1923
• Docket Number: No. 23.,23.
• Citation: 193 N.W. 812,223 Mich. 378
• Parties: DE GALAN et al. v. BARAK.
• Court: Michigan Supreme Court

223 Mich. 378

193 N.W. 812

DE GALAN et al.

v.BARAK.

No. 23.

Supreme Court of Michigan.

June 4, 1923.

Appeal from Circuit Court, Wayne County, in Chancery; Ormond F. Hunt, Judge.

Suit by Fred De Galan and others against Heyman Barak. Decree for plaintiffs, and defendant appeals. Affirmed.

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

Harold F. Coyle, of Detroit (Alfred J. Murphy, of Detroit, of counsel), for appellees.

WIEST, C. J.

This is an injunction bill to restrain a threatened violation of building restrictions.

Plaintiffs are owners of high-grade single dwelling houses on Carter avenue, in the block between Lawton and Wildemere avenues, city of Detroit. Their lots and defendant's lots are in the Wm. L. Holmes subdivision. The plat of this subdivision laid out 376 lots for residence purposes on Carter, Gladstone, and Hazelwood avenues. All lots in the subdivision are subject to the following restrictions:

‘Provided always, and these presents are upon this express condition, the said party, his heirs and assigns * * * shall neither erect nor suffer to be erected thereon any buildings except such as are to be used exclusively for residence purposes, and neither to place nor erect nor suffer to be placed or erected thereon any dwelling house of less than two stories in height or costing less than $1,500, and that no part of any building on said piece or parcel of land shall be placed within fifteen feet of the street line at the front thereof.’

In June, 1922, defendant purchased three lots at the southeast corner of Carter and Wildemere avenues, subject to such building restrictions, took advice of an attorney as to his rights, and at the time the bill was filed had excavated for the foundation of a 3-story 24 apartment house on the 3 lots, with the front of the excavation 15 feet from the street lot line. In the block are 50 lots. Upon 40 lots are 2-story single dwelling houses, standing 25 feet back from the street line, with porches in front thereof. On the northwest corner of Carter and Lawton avenues there is a 4-family apartment standing back 23 feet from the street line, and opposite, on the southwest corner, a story and a half semibungalow. Several apartment houses and 2-family flats have been erected on Gladstone and Hazelwood avenues. Plaintiffs claim that, under the restrictions, only single dwellings, occupying but one lot, can be constructed and by reason of common adoption of a plan of setting houses in the block back 25 feet from the street line all new houses must conform to such building line.

Defendant contends that the restrictions do not prevent a dwelling house from occupying more than one lot; that an apartment house is a building ‘used exclusively for residence purposes,’ and is therefore a ‘dwelling house’ within the terms of the restrictions; that the general plan of improvement with reference to location of buildings on lots was not established by the evidence, and that the right to insist upon the restrictions has been lost by permitting the 4-family apartment to be erected in the block and apartment houses and flats to be erected on other streets within the restricted area.

The decree entered in the circuit enjoined defendant ‘from erecting upon any one of said lots anything except a single dwelling house to be used for a single family, said single dwelling house to be erected on the lots above mentioned, with its front line not nearer than 25 feet...