Killian v. Goodman

• Decision Date: 31 December 1924
• Docket Number: No. 110.,110.
• Citation: 201 N.W. 454,229 Mich. 393
• Parties: KILLIAN et al. v. GOODMAN et al.
• Court: Michigan Supreme Court

229 Mich. 393

201 N.W. 454

KILLIAN et al.

v.GOODMAN et al.

No. 110.

Supreme Court of Michigan.

Dec. 31, 1924.

Appeal from Circuit Court, Wayne County, in Chancery; Henry A. Mandell, Judge.

Bill by Herman Killian and others against Harry Goodman and others. From a decree of dismissal, plaintiffs appeal. Reversed.

Argued before McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Lynch & Lovett, of Detroit, for appellants.

Benjamin, Betzoldt & Bassett, of Detroit, for appellees.

McDONALD, J.

This bill was filed to enjoin the erection of a 33-family apartment house, which the plaintiffs claim is in violation of certain building restrictions. The district in question is known as Mills subdivision No. 4, in the city of Detroit. It was platted in 1912. The plat contains no building restrictions. All of the plaintiffs own property on Helen avenue in this subdivision. The defendant Goodman bought lot 41 and a part of lot 42, located at the southeast corner of Helen and Stuart avenues, with the intention of building a 33-family apartment house. He says that there are no building restrictions covering the lots in Mills subdivision No. 4, which would prevent the erection of such a building, and that if there were any valid restrictions they have been waived by the building of two-family, four-family, and six-family flats. On the hearing the circuit judge accepted his view of the case and dismissed the bill. From the decree entered the plaintiffs have appealed.

The first question to which our attention is directed is whether there is any valid restriction applying to Mills subdivision No. 4, which would prevent the erection thereon of a 33-family apartment house.

The record shows that in this subdivision there have been 143 conveyances from the owner, Merrill B. Mills, to different grantees. Fifty-two, of these restricted the use of the premises to ‘dwelling house.’ In eighty-seven of them the words ‘a dwelling house’ were stricken out of the printed form, and the words ‘a residence’ were inserted instead. Where the words, ‘a dwelling house’ were used, it read:

‘That no store, factory or building of any nature other than a dwelling house shall be erected on said premises,’ etc.

Where the words ‘a residence’ were used, it read:

‘That no store, factory or building of any nature other than a residence shall be erected on said premises,’ etc.

Counsel for the defendants contends that the term ‘a residence’ does not mean a single residence, but merely fixes the nature of the use of the property for residence purposes as distinguished from business or manufacturing purposes, and that it means a single home, a 2-family, 4-family, or a 33-family apartment. We think counsel is wrong. In Schadt v. Brill, 173 Mich. 647, 139 N. W. 878,45 L. R. A. (N. S.) 726, this court held that the words ‘a dwelling house,’ used in a restrictive covenant, mean a single dwelling house. If a dwelling house means a single dwelling house, why does not a residence mean a single residence? The letter ‘a’ has some significance before the word ‘residence.’ A horse means one horse, a single horse; it does not mean a team or 33 horses. So a residence means one residence, a single residence, not 33 residences. Giving to the words used in these restrictions their ordinary commonly understood meaning, ‘a dwelling house’ means one single dwelling house, and ‘a residence’ means one single residence. The terms as used in the restrictions are synonymous. This being true, we have then 143 conveyances of lots in this subdivision, 139 of which contain covenants restricting the use of the premises to single residences or dwellings. Four contain no restrictions.

The defendants' conveyances restrict the use of his lots to ‘a residence,’ and therefore prohibit the erection of a 33-family apartment house.

Why is he not bound by it?

In his opinion which forms the basis of the decree in this case, the circuit judge said:

‘I am inclined to rule that the general departure from the original plans, if there were any plans or claimed plan, by allowing two-family apartments and four-family apartments and in some cases six, destroys everything in this subdivision except the restriction that the whole subdivision should be restricted to residence purposes only.’

We do not think the evidence shows a waiver or an abandonment of the restrictions. The plat was without building restrictions. Mr. Gilmore, representing Merrill B. Mills, platted the property, and he testifies that the reason he did not put in any restrictions was because of a previous agreement between Mr. Mills and certain property owners relative to the use of the lots on Helen avenue. This agreement was in writing and is noted on the abstracts, but was not put in evidence. So while the record does show the extent of the agreement, it does appear that it related to restrictions on this property. From this it is a fair assumption that it contained the same restrictions as were incorporated in the form of conveyances used when the property was subsequently put upon the market. As we have pointed out, the effect of these restrictions was to limit the use of the lots in the subdivision to single dwellings or single residences. But they were not so understood by the parties, which is not at all surprising in view of the fact that able counsel are here contending for different constructions. For the most part, two-family flats were erected. The plaintiff Killian testifies on cross-examination as to his construction of the restriction:

‘Q. You are contending here that under the restrictions in your deed only single residences, single family or single dwellings, can be erected on these lots; is that right? A. No, I think two-family flats could be...