Kime v. Dunitz

• Decision Date: 06 March 1930
• Docket Number: No. 132.,132.
• Citation: 249 Mich. 588,229 N.W. 477
• Parties: KIME et al. v. DUNITZ et ux.
• Court: Michigan Supreme Court

249 Mich. 588

229 N.W. 477

KIME et al.

v.DUNITZ et ux.

No. 132.

Supreme Court of Michigan.

March 6, 1930.

Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, Judge.

Suit by Elmer J. Kime and others against Harry Dunitz and wife. Decree for plaintiffs, and defendants appeal.

Decree rendered dismissing bill of complaint.

Argued before WIEST, C. J., and BUTZEL, CLARK, POTTER, SHARPE, NORTH, and FEAD, JJ.Seymour J. Frank and Miller, Baldwin & Boos, all of Detroit (William Henry Gallagher, of Detroit, of counsel), for appellants.

Stevenson, Butzel, Eaman & Long, of Detroit (Charles E. Goodrich, of Detroit, of counsel), for appellees.

SHARPE, J.

The plat of Highland Park subdivision was recorded on November 11, 1886. It embraces the territory lying between Woodward avenue on the east and Hamilton (formerly Greenwood) avenue on the west, and between Glendale avenue on the north and the alley south of Cortland avenue on the south. It contains 216 lots. Dotted red lines on the plat run across the lots fronting on Highland and Cortland avenues, and near this line on the lots fronting on Highland appear the words ‘Line of buildings 30 ft. from line of Highland avenue.’ The plat is otherwise unrestricted.

The north side of Highland avenue for a distance of 600 feet west of Woodward, and of a depth of 234 feet, is not included in this plat. The defendants own lot 174 and the east 20 feet of lot 173, adjoining this land on the west. Next adjoining defendants' land on the west is the property of the plaintiff Michigan Bell Telephone Company. Second avenue lies a few hundred feet further to the west. The other plaintiffs own residence properties on the south side of Highland avenue between Second and Woodward avenues.

This suit is brought to enjoin the defendants from constructing an apartment building on their property with the front thereof flush with the street line. The trial court held that plaintiffs were entitled to the relief prayed for, but limited the restraint to 20 feet from the street line, for the reason that Highland Manor, hereafter referred to, had been permitted to be so constructed. From the decree entered defendants have appealed.

There are two apartment buildings on the 600-foot strip, whose fronts are on the street line; that to the west adjoins the lots of the defendants. The telephone company has constructed a building for its use on its property. It stands back 30 feet from the street line. Across the street, and a little further to the east, stands a large apartment building known as ‘Highland Manor,’ the front of which extends to within about 20 feet of the street line. A church stands on the southwest corner of Highland and Woodward, built close to the street line of the former, and several other buildings to the west of it were built without regard to the 30-foot building line. To the west of Second avenue many buildings have been erected for use as apartments or business, with little, if any, regard for the dotted line or notation on the plat as a restriction; one of which, erected by the defendants, known as the Daniel Apartments, containing 59 apartments, extends to within 7 feet of the street line, the steps leading down thereto.

Before defendants' purchase, they had the title examined. The use of the property was in no way restricted in any of the former conveyances. The dotted line on the plat was seen. They were advised (and the evidence submitted discloses) that in a suit brought in 1921 in the circuit court for Wayne county, in chancery, wherein it was sought to enforce the 30-foot building line as a restriction by property owners on Highland avenue near Hamilton avenue, the trial court had held that this line was not a restriction, and no appeal therefrom had been taken. They began the erection of an apartment building to cost about $225,000, and, after an expenditure of a considerable sum for plans and excavation and construction work, were enjoined from proceeding.

Defendants insist that the dotted line, with the notation on it, ‘Line of buildings 30 ft. from Highland avenue,’ does not in itself constitute a valid building line restriction. In this we think they are right. A restriction is in the nature of a covenant, and may not be implied in any conveyance. 3 Comp. Laws 1915, § 11691. It must be expressed in words, or by such apt reference to the plat as to give expression to the grantor's purpose. Such a line appeared upon the plat involved in Windemere, etc., Ass'n v. Bank, 205 Mich. 539, 172 N. W. 29, but was not decisive of the conclusion there reached. In Hill...