Lanski v. Montealegre, 48

• Decision Date: 15 September 1960
• Docket Number: No. 48,A,48
• Citation: 104 N.W.2d 772,361 Mich. 44
• Parties: Louis LANSKI et al., Plaintiffs and Appellees, v. Harry MONTEALEGRE and Hazel Montealegre, Defendants and Appellants. pril Term.
• Court: Michigan Supreme Court

Page 772

104 N.W.2d 772

361 Mich. 44

Louis LANSKI et al., Plaintiffs and Appellees, v. Harry MONTEALEGRE and Hazel Montealegre, Defendants and Appellants.

No. 48, April Term.

Supreme Court of Michigan.

Sept. 15, 1960.

Small, Zick & Shaffer, Benton Harbor, for appellants, Hahn & Zimmerman, South Bend, of counsel.

Theron D. Childs, Jr., Three Oaks, for appellees.

Before the Entire Bench.

SOURIS, Justice.

In 1919 William Eiler, defendants' predecessor in title, acquired title to about 20 acres of land near Lake Michigan in Berrien county. The land was unimproved except for three buildings and a residence located on what is now known as lot 1. Until about 1922 Mr. Eiler and another conducted a hotel and restaurant business in those buildings. In 1922 Mr. Eiler and his partner divided the land, his partner taking the business and moving it across the road, Mr. Eiler retaining part of the land, including lot 1, as well as a 30-foot access strip to Lake Michigan. He continued to maintain his residence in a stone house on lot 1. In 1923, 12 1/2 acres of the Eiler land were subdivided, but the plat thereof was not recorded. Beginning in October of 1923, lots were sold or improved and rented by Mr. Eiler, such sale and rental business being conducted from an office in his residence on lot 1. As the number of residents increased in his subdivision, Mr. Eiler sold water through a pipe line he established throughout the subdivision, and he operated a garbage disposal business. The office work and bookkeeping for these enterprises were conducted from the office in his residence on lot 1.

The plaintiffs are owners of lots in the subdivision and trace title to Mr. Eiler. All of their deeds, and almost all of the deeds executed by Mr. Eiler, contain restrictions against using the lots conveyed for commercial purposes. Although the wording varies somewhat, a typical restrictive clause reads as follows:

'Second parties and their successors and assigns shall not use said premises for any commercial enterprise or engage in any commercial undertaking thereon; it being expressly understood and agreed that renting single or duplex cottages is not considered commercializing.'

The Eilers retained lot 1, and it has passed by succession to the present defendants. In 1954 the defendants established a convalescent home on lot 1 in the building formerly used as the residence. That same year plaintiffs notified the defendants that such a use of lot 1 was a commercial undertaking; that the language in their deeds attached a reciprocal negative easement to lot 1; and that defendants' use of lot 1 as a convalescent home was in violation thereof. Since defendants continued to operate the home, plaintiffs instituted this action seeking an injunction in November of 1955. The lower court found that a reciprocal negative easement had been created and that the operation of a convalescent home was a violation of the restriction. A decree was entered permanently enjoining defendants' use of the land for such purpose.

Both parties agree upon the definition and effect of a reciprocal negative easement. There must have been a common owner of the related parcels of land, and in his various grants of the lots he must have included some restriction, either affirmative or negative, for the benefit of the land retained, evidencing a scheme or intent that the entire tract should be similarly treated. Once the plan is effectively put into operation, the burden he has placed upon the land conveyed is by operation of law reciprocally placed upon the land retained. In this way those who have purchased in reliance upon this particular restriction will be assured that the plan will be completely achieved. See Sanborn v. McLean, 233 Mich. 227, 206 N.W. 496, 60 A.L.R. 1212; Denhardt v. DeRoo, 295 Mich. 223, 294 N.W. 163; Cook v. Bandeen, 356 Mich. 328, 96 N.W.2d 743.

That there was in this case a common owner of related parcels of land cannot be denied. Further, he was systematic in his inclusion of a covenant against the commercial use of the lots conveyed. The difficulty here lies in the fact that at the time of these conveyances, Mr. Eiler used the office in his residence on lot 1 in connection with his various enterprises, viz., selling lots and renting cottages in the subdivision, selling water, and a garbage disposal service. The defendants assert that since lot 1 was being used for such 'commercial' purposes at the time the plaintiffs purchased their lots, they could not have relied upon a future...