Kirby v. Meyering Land Co.

• Decision Date: 03 October 1932
• Docket Number: No. 172,April Term.,172
• Citation: 244 N.W. 433,260 Mich. 156
• Parties: KIRBY et ux. v. MEYERING LAND CO. et al.
• Court: Michigan Supreme Court

260 Mich. 156

244 N.W. 433

KIRBY et ux.

v.MEYERING LAND CO. et al.

No. 172, April Term.

Supreme Court of Michigan.

Oct. 3, 1932.

Appeal from Circuit Court, Oakland County, in Chancery; Glenn C. Gillespie, Judge.

Suit by William E. Kirby and wife against the Meyering Land Company and others. From a decree for defendants, plaintiffs appeal.

Affirmed.

Argued before the Entire Bench.

POTTER, J., dissenting.

George B. Hartrick, of Royal Oak, for appellants.

Andrew L. Moore, of Pontiac, for appellees.

POTTER, J.

September 20, 1929, plaintiffs filed their bill of complaint against defendants to restrain trespass, remove permanent and temporary buildings alleged to constitute a trespass, and for other relief. From a decree for defendants, plaintiffs appeal. July 23, 1923, plaintiffs applied to purchase lot No. 44 of Beachland subdivision in the township of Waterford, Oakland county, Mich.

March 20, 1924, plaintiff William E. Kirby bought of Fred S. Welch, trustee, on land contract: ‘Lot 44 of Beachland Subdivision, according to the plat thereof as recorded in Register of Deeds' office of Oakland County, Michigan: Also the perpetual use of lots 13, 31, 32, 33, and 106 of said Beachland Subdivision in common with the owners and occupants of all the other lots in said subdivision in passing to and from Cass Lake, Sylvan Lake and Clinton River; also lots 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39 and 40, also 38 subjected to the restrictions in a deed recorded in Liber 355, page 65. For the sum of eighteen hundred and no/100 dollars.’

November 26, 1928, the Meyering Land Company of Detroit, a corporation, deeded to plaintiff William E. Kirby and Ethel M. Kirby, his wife, the following:

‘Lot number forty-four (44) of Beachland Subdivision, according to a plat thereof as recorded in Register of Deed's office for Oakland County, Michigan, in Liber 22 of Plats on page 3; also the perpetual use of lots 13, 31, 32, 33, 34, 106, 24, 25, 26, 27, 28, 29, 30, 35, 37, 38, 39 and 40, in common with the owners and occupants of all the other lots in said Subdivision in passing to and from Cass Lake, Sylvan Lake and Clinton River.

‘Subject, however, to the following building and other restrictions and which attach to and run with the land:

‘(1) Upon all lots of said Beachland Subdivision running to Cass Lake, Sylvan Lake and Clinton River, except lots 38, 39 and 40, no part of any building, located thereon shall be within 40 feet of the water's edge and upon all other lots no part of any building shall be within 25 feet of the street line in front of said lot.

‘(2) All buildings erected or located on lots 41-52, inclusive, shall face upon Cass Lake Drive.

‘(3) All buildings erected and located on lots 53-93, both inclusive, shall face upon Beachland Boulevard.

‘(4) All buildings erected or located on lots 94-99, both inclusive, shall face upon Sylvan avenue.

‘(5) All buildings erected or located on lots 1-40, inclusive, shall face upon Cass Lake or Clinton River as the case may be.

‘(6) All buildings erected or located on lots 100-121, inclusive, shall face upon Sylvan Lake.

‘(7) No fence shall be constructed on any lot unless the same comply fully with each and all of the specifications:

‘(a) It shall not be more than 36 inches in height above the ground;

‘(b) It shall be composed of either wooden lattice work or structural ornamented metal;

‘(c) It shall be at all times kept in good repair and properly painted.

‘(8) No more than one building shall be erected on any lot, nor shall any building be erected thereon, any part of which shall be within 10 feet of the side line of the lot on which the same is located. Boathouses shall be deemed to be within the term (building). All garages must be erected as a part of or immediately adjoining the house on the lot. No old building shall be moved onto any lot, nor shall any cottage or dwelling be erected on any lot whose cost shall be less than $2,500.00, nor shall any store or other salesrooms, or place for the transaction of business, be erected or maintained on any lot excepting those lots which may be reserved by the owner of the subdivision for business purposes.

‘(9) No lots shall be sold, or rented to, or occupied by any persons of Jewish or Negro descent.’

The lot purchased and acquired by plaintiffs in pursuance of this deed faces Cass Lake drive, which is 50 feet wide; and between plaintiffs' lot 44 and Cass Lake lie lots 36 and 37. On lots 36 and 37 defendants have erected a signboard 50.7 feet long and 10 feet wide, the top of which is 12 feet 2 inches above the ground. This sets back from Cass Lake Drive approximately 60 feet. Defendants have also caused to be erected what is designated as the Cass-Sylvan Lakes Beach Club House, a frame building approximately 76.3 feet long and 35 feet in width. This building stands on lots 32, 33, and 34 approximately 80 feet back from Cass avenue and between that and Cass Lake. East and north of this clubhouse is a pumphouse 20x24 feet which stands on lot 34. Plaintiffs claim the erection and maintenance of the signboard, above described, and this clubhouse and pumphouse constitutes trespass upon their rights to the property on which they stand, and file this bill of complaint to abate them.

Plaintiffs' rights depend upon their deed. No principle is more sacred than that a man shall be compelled to perform his contract. Leech v. Schweder, 9 Ch. App. Cas. 463. Said Sir George Jessel:

‘It is clearly established by authority that there is sufficient to justify the Court interfering if there has been a breach of the covenant. It is not for the Court, but the Plaintiffs, to estimate the amount of damage that arises from the injury inflicted upon them. The moment the Court finds that there has been a breach of the covenant, that is an injury, and the Court has no right to measure it, and no right to refuse to the Plaintiff the specific performance of his contract.’ Leech v. Schweder, 9 Ch. App. Cas. 463.

‘If the construction of the instrument be clear and the breach clear, then it is not a question of damage, but the mere circumstance of the breach of covenant affords sufficient ground for the Court to interfere by injunction.’ Tipping v. Eckersley, II Kay & Johnson's, 264, 69 Eng. Reprint, 779.

‘It is therefore, in my opinion, a matter of no moment in this case, that the Plaintiffs have given no evidence of any actual damage done to them. * * * Having established that the acts of the Defendants are a violation of the contract entered into between them and the Plaintiffs, and a violation of the Act of Parliament passed to carry such contract into effect, the Plaintiffs are entitled to call upon this Court to protect them in the enjoyment of that right which they have so purchased, and this court is bound to preserve it from being broken in upon.’ Dickenson v. The Grand Junction Canal Co., 15 Beavan, 260.

‘I am of opinion that the plaintiff because he has not complained of certain breaches of covenant which in my opinion have inflicted no injury upon him, has not thereby debarred himself from complaining of a breach which does effect the value of his property.’ Western v. MacDermot, 1 Eq. Cas. 498.

‘It has been suggested that there has been such an acquiescence on the part of the plaintiff as entirely bars his right. But, as I have observed during the argument, in order that the defendant should succeed in that contention, the burden of which, of course, rests on him, he must shew such a course of acquiescence as for ever to preclude the plaintiff from insisting on his right under the agreement.’ Evans v. Davis, 10 Ch. Div. 747.

The grant is not of a mere right of passage limited or to be limited and defined by the court as in ordinary easement cases. It is a grant of a perpetual use-a grant of an interest in and title in common with the owners and occupants of all the other lots in the subdivision to the 19 lots named-in passing to Cass Lake, Sylvan Lake, and Clinton river. If a mere right of way or easement to reach the waters of Cass Lake, Sylvan Lake, and Clinton river was intended, it would not have been necessary to name the 19 different lots mentioned in the deed. An examination of the deed, the restrictions contained therein, the lots named to which building restrictions were applied, the character of the land as then platted, the reppresentations made by the owners through their selling agents to plaintiffs as to what was to be done with the land, the advertising matter issued with the approval of the owners of the property, the circular reading, ‘Private Park-Cass Lake frontage reserved for the use of lot owners,’ the provisions of the deed that the above nine restrictions and conditions are not only binding on the parties thereto, but are made for the benefit of and may be enforced by any of the owners of the land in said subdivision, indicate that it was originally intended the lots specified were not to be built upon. The correspondence of the defendant Meyering Land Company, which acquired this property, indicates in understood the purchasers of the lots had rights which they could not, without violating their contracts, infringe upon.

July 12, 1925, Meyering Land Company sent plaintiff W. E. Kirby a letter of conveyance, to be executed, which recited that: ‘In order to release from operation and effect that portion of the restrictions and conditions contained in contract for the purchase by the undersigned of lot in Beachland Subdivision * * * such restrictions pertaining to the perpetual use in common with other lot owners in said subdivision of lots * * * consideration of the sum of one dollar and other considerations, the receipt whereof is hereby acknowledged, the undersigned does by these presents grant, bargain, sell, remise and release and forever quit-claim unto the Meyering Land Company or to its assigns, all those pieces or parcels of land situate in the county of Oakland, State of Michigan...