Golden v. Davis

• Decision Date: 06 March 1934
• Docket Number: No. 117.,117.
• Citation: 266 Mich. 7,253 N.W. 195
• Parties: GOLDEN v. DAVIS et al.
• Court: Michigan Supreme Court

266 Mich. 7

253 N.W. 195

GOLDEN

v.DAVIS et al.

No. 117.

Supreme Court of Michigan.

March 6, 1934.

Appeal from Circuit Court, Wayne County; Thomas J. Murphy, Judge.

Suit by Russell E. Golden against Fannie Davis and the Highland Oil Corporation. From a decree dismissing plaintiff's bill of complaint, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Samuel B. Keene, of Detroit, for appellant.

Isadore Starr and Joseph R. Leemon, both of Detroit, for appellees.

BUTZEL, Justice.

Previous to 1890, property in the center of Detroit and north of Grand boulevard consisted mainly of undivided tracts of land, many of them fronting on Woodward avenue, a main arterial highway running in a northerly and southerly direction. In 1890 a rather narrow strip was subdivided and platted under the name of McLaughlin Brothers' subdivision, out lot 4 and the southerly 150 feet of out lot 5 of the subdivision of quarter section 45, Ten Thousand Acre tract, detroit. It runs from Woodward avenue three blocks west to Hamilton boulevard, and is also traversed by Second and Third avenues, which run north and south and parallel to Woodward avenue. The lots of the subdivision front on the north and south side of Blaine avenue and on the south side of Gladstone avenue.

Plaintiff, Russell E. Golden, is the owner of lot 70 in the subdivision. This lot is situated at or near the southeast corner of Gladstone and Third avenue, and is approximately 800 feet distant from lot 84 and the west 20 feet of lot 85 of the subdivision; the latter two lots being situated at the southwest corner of Gladstone and Second avenues. This latter property is owned by defendant Fannie Davis, who has made some agreement with the defendant Highland Oil Corporation, under which it is about to erect and operate an attractive oil station on the property. Plaintiff has brought the instant suit to restrain such a use.

The property was platted with the following restriction: ‘That the owner of said lots, their heirs and assigns shall not, at any time erect or place, or cause, or permit, to be erected, or placed, on said premises any other building except a dwelling house and the necessary private barn and outhouses, and the said dwelling house shall cost not less than $2500.00 and shall stand not less than twenty feet from the front line of the lot, and not more than one such dwelling house, with the necessary outbuildings, and private barn, shall be erected or placed upon any one lot.'

At the time of the platting, and for many years thereafter, Second avenue north of the Grand boulevard was exclusively a residential street. With the advent of the automobile, the rapid growth of the city, the necessity for wider streets for vehicular traffic, and the demand for neighborhood stores, rooming houses, restaurants, and oil stations, the character of Second avenue has entirely changed, with the exception of a few corners, in the fourteen blocks north of the boulevard up to Clairmount avenue. Beautiful shade trees formerly bordering the avenue have been cut down, and the...