Library Neighborhood Ass'n v. Goosen

• Decision Date: 10 December 1924
• Docket Number: No. 152.,152.
• Citation: 201 N.W. 219,229 Mich. 89
• Parties: LIBRARY NEIGHBORHOOD ASS'N et al. v. GOOSEN.
• Court: Michigan Supreme Court

229 Mich. 89

201 N.W. 219

LIBRARY NEIGHBORHOOD ASS'N et al.

v.GOOSEN.

No. 152.

Supreme Court of Michigan.

Dec. 10, 1924.

Appeal from Circuit Court, Wayne County, in Chancery; Chas. B. Collingwood, Judge.

Suit by Library Neighborhood Association and others against Henry J. Goosen. From decree dismissing the bill, plaintiffs appeal. Reversed, and decree entered, granting relief prayed for.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Clark, C. J., and Bird and Sharpe, JJ., dissenting.Yerkes Simons & Goddard, of Detroit, for appellants.

Frank C. Cook and John P. O'Hara, both of Detroit, for appellee.

McDONALD, J.

The plaintiffs seek to enjoin the erection of a 10-story apartment building on certain lots in the city of Detroit, which they say are restricted to single residences. The district in which the lots are located is bounded on the west by Second avenue, on the east by Cass avenue, on the north by Kirby avenue, and on the south by Warren avenue. It comprises three city blocks (3, 4, and 5) of the Cass Farms subdivision. It contains 78 lots, all of which have been sold, and on all nothing but single residences have been erected. The defendant has leased lots 3, 4, 5, and 6 of block 4, and intends to tear down the residences that have been built thereon and build a 10-story apartment, with 200 rooms, and 17 garages in the rear. The recorded plan contains no restrictions. Lot 3 and the south 25 feet of lot 4 is owned by Ralph Stone. His deed contains the following building covenant:

‘It is a condition of this conveyance that the second party, his heirs and assigns, shall erect on said lot, and complete, a good and well-built single dwelling house of stone or brick, worth not less than $6,000, placing the same 25 feet from the front line of said lot, and upon the grade of said block, as the same shall have been established by the party of the third part.’

The deeds of lots 5 and 6 and the northerly 25 feet of lot 4, now owned by James M. Teahen, contain similar restrictions. It is the claim of the defendant that the language of the restrictive clauses in these deeds does not create a restriction, but that it is merely a personal affirmative covenant imposed upon the grantees for the benefit of the original grantor; that it cannot be enforced against subsequent grantees; and that, if the language of the deeds can be said to restrict the use of the property to single residences, the conditions on Cass avenue have so changed as to render it unjust and inequitable to enforce the restriction. On the hearing, the circuit judge was of the opinion that the language of the deeds did not create a restriction as to single residences. From the decree entered, dismissing the bill, the plaintiffs have appealed.

The restriction in question is unusual, in that it merely requires the grantee to perform an affirmative covenant to build a certain type of single residence, and that it does not in express terms prohibit the erection of apartment houses or other buildings. If we were to consider only the precise language of the covenant, we might agree with the contention of the defendant, but, under the circumstances of this case, the rights of the parties are not to be determined by a literal interpretation of the restriction. It is to be construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it, the location and character of the entire tract of land, the purpose of the restriction-whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers, and whether it was in pursuance of a general building plan for the development and improvement of the property. If there was a general building scheme, the purpose of which was to restrict this district to single residences, it matters not how it is expressed in the covenant, or what the covenant may be called. However, so far as the purpose is definitely stated in the covenant, that purpose should control.

In this case the covenant requires the building of single residences of a certain type, but is indefinite as to the time the land shall be used for that purpose. It does not state how long the required building shall be maintained. If a grantee of a deed containing this covenant complies with the requirement and builds a single residence of stone or brick, placing it 25 feet from the front line of the lot, can he tear it down the next day and build a store or garage covering the entire lot, or is he limited in the use of the property to a single residence? This question cannot be answered by a literal interpretation of the covenant. We must look to the surrounding circumstances to discover the intention of the parties and the purpose of the original grantor in imposing the restriction.

‘In dealing with this subject, equity does not concern itself with the form of the language in which the restriction is couched, but deals only with its substance. It disregards the inquiry whether it is a condition or a covenant, and enforces it when it was plainly intended by the parties that it should be for the benefit of the land held by the plaintiff.’ Coughlin v. Barker, 46 Mo. App. 54, cited in note to Korn v. Campbell, 37 L. R. A. (N. S.) 18.

‘It is always a question of the intention of the parties. * * * In order to make this rule applicable, it must appear from the terms of the grant, or from the situation and surrounding circumstances, that it was the intention of the grantor in inserting the restriction to create a servitude or right which should inure to the benefit of the plaintiff's land, and should be annexed to it as an appurtenance.’ Beals v. Case, 138 Mass. 138.

‘In cases of this kind it is important to ascertain the purpose of the grantor in imposing the restrictions-whether they are intended for his personal benefit, or for the benefit of the lot owners generally. His intention is to be gathered from his acts and the circumstances.’ Hano v. Bigelow, 155 Mass. 341, 29 N. E. 628.

What, then, was the intention of the Cass Farm Company, in incorporating these restrictions in its contracts and deeds?

The lots upon which the defendant proposes to build his apartment house are in block 4 and front in Cass avenue. In the same year that the land was platted, 1893, lot 22 of block 4 was sold on contract to Mr. Butterfield. It was the first sale made with a restriction, and was one of...