Keywell v. Newman, 74

• Decision Date: 06 March 1952
• Docket Number: No. 74,74
• Citation: 332 Mich. 619,52 N.W.2d 233
• Parties: KEYWELL et al. v. NEWMAN et al.
• Court: Michigan Supreme Court

Page 233

52 N.W.2d 233

332 Mich. 619

KEYWELL et al. v. NEWMAN et al.

No. 74.

Supreme Court of Michigan.

March 6, 1952.

Ralph L. Seltzer, Detroit, for appellants.

Clark, Klein, Brucker & Waples, Detroit, for appellees.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiffs sought to restrain defendants from remodeling and using as a maternity hospital their four-family flat located on lot 22 and part of lot 23 in the Norton and Beardsley's subdivision, which is two blocks long, 205 feet deep, divided into lots numbered serially from 1 to 30, and lies on the north side of West Grand boulevard between Linwood and Wildemere avenues in the city of Detroit. The plat, recorded in 1889, contained no restrictions, but the lots became restricted to use for residence purposes only by virtue of provisions in conveyances in 1911.

In 1920 plaintiff Keywell bought lot 29 and parts of lost 28 and 30 and built a 42-family apartment thereon, violating the restriction as to front building ling. In that year he also entered into an agreement with the adjoining owner of the east 40 feet of lot 30, permitting the construction of a super market thereon, which is now situated on said lot, as are other commercial establishments, including a tavern and dry cleaner. In 1946 Keywell and other lot owners joined a consent decree allowing the use of lot 24 or 25 for a chiropractor's office, at which location a building known as 'Northwestern Health Clinic' is now situated with a large sign in front of it advertising it as such; later they entered into another consent decree permitting a doctor's office to be maintained, as it now is, on lot 18. Further west in the subdivision two funeral homes are operated. In 1935, in a suit for a declaratory decree as to whether the restrictions applied to two lots located between lots 1 and 14, Keywell and other lot owners entered into a consent decree which provided that the restrictions should no longer apply to lots 1 to 14, inclusive; the decree undertook to provede concerning lots 16 to 30, inclusive, not involved in the suit, that the restrictions still applied to them. The area, including the entire subdivision, is zoned by the city of Detroit for commercial use. Across the street from plaintiffs' property is a large gasoline station, and to the west of it, successively, a large apartment building, a church, additional apartments, the great Lee Plaza Hotel, and large school playgrounds. On the corner lot just east of the subdivision is an insurance office. The testimony of a relator familiar with the area is that the character of the neighborhood has largely changed from residential dential to commercial. In Harrigan v. Mulcare, 313 Mich. 594, 22 N.W.2d 103, 107, the adjacent subdivision immediately to the east was before the court and the entire area here in question was characterized by this court as no longer residential and it was found that the commercial use of lots in the subdivision there in question had been acquiesced in for many years. Plaintiffs in that suit sought to enjoin the use of lots for a beauty parlor and for wholesale casket display rooms in...