Mack Outer Drive Improvement Ass'n v. Merrill

• Decision Date: 08 April 1947
• Docket Number: January term.,No. 4,4
• Citation: 317 Mich. 24,26 N.W.2d 583
• Parties: MACK OUTER DRIVE IMPROVEMENT ASS'N et al. v. MERRILL.
• Court: Michigan Supreme Court

317 Mich. 24

26 N.W.2d 583

MACK OUTER DRIVE IMPROVEMENT ASS'N et al.

v.MERRILL.

No. 4, January term.

Supreme Court of Michigan.

April 8, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Robert M. Toms, judge.

Suit by Mack Outer Drive Improvement Association, a Michigan corporation, and others against Gertrude H. Merrill for a declaratory decree that three lots owned by defendant were subjected a certain building and use restriction. From the decree, the defendant appeals.

Affirmed.

Before the Entire Bench.

Buckingham, Piggins & Rehn and Edward S. Piggins, all of Detroit, for appellees.

Carl R. Thomsen, of Detroit, for appellant.

NORTH, Justice.

Pursuant to Act No. 36, Pub.Acts of 1929, Comp.Laws 1929, § 13903 et seq., Stat.Ann. § 27.501 et seq., plaintiffs instituted suit to obtain a declaratory decree to the effect that three lots owned by defendant were subject to a certain building and use restriction. Following a hearing on the merits, the trial judge decreed that the restriction governed the use of defendant's lots. Defendant has appealed.

All of the parties except the corporate plaintiff own lots in Grosse Pointe Manor Subdivision. The corporate plaintiff is composed of property owners in Grosse Pointe Manor Subdivision, who organized for various purposes including that of protecting their property interests.

The plat of Grosse Pointe Manor Subdivision was recorded October 13, 1913. This subdivision, originally a part of Gratiot and Grosse Pointe townships but later included within the corporate limits of the city of Detroit, consists of 225 lots. It is narrow, providing frontage on but two streets, Audubon Road and Whittier, and is bounded on the south by Mack Avenue, and on the north by Cornwall. All of the lots in this subdivision, including defendant's lots, were sold subject to the following restriction: ‘No building shall be erected or placed on said premises other than a single residence, or nearer than 35 feet to the line of Audubon Road and 10 feet off north lotline, or costing less than $4,000.’ This is the restriction which plaintiffs seek to enforce against defendant.

In Grosse Pointe Manor Subdivision there are only four lots bounded on the south by Mack Avenue. Defendant owns two of these lots, being Nos. 1 and 112. Defendant also owns Lot No. 2 which is immediately to the north of Lot No. 1. Title to these lots vested in defendant upon the death of her husband in 1930. Defendant's husband purchased a land contract vendee's interest in Lots 1 and 2 on April 26, 1926 and purchased Lot 112 under an executory land contract on December 28, 1926. On June 27, 1928, defendant and her husband received a warranty deed conveying Lot 112 to them; and on February 25, 1929, they received a warranty deed conveying Lots 1 and 2 to them.

For the purpose of widening Mack Avenue, the city of Detroit commenced condemnation proceedings April 27, 1925; the verdict roll was filed April 1, 1926, and the verdict was confirmed May 7, 1926. As a result of the condemnation proceedings Lots 1 and 112 were reduced approximately 28 feet in width. Lot 1 originally had a frontage of 86.10 feet, a rear of 95.34 feet, a depth of 160.55 feet: and after condemnation, a frontage of 58.82 feet, a rear of 68.26 feet, the depth remaining the same. Lot 112 originally had a frontage of 82.64 feet, a rear of 73.05 feet, a depth of 166.38 feet; and after condemnation a frontage of 55.28 feet, a rear of 45.74 feet, the depth remaining the same.

Lot No. 2 was reduced in size when a portion of the north side of said lot was dedicated as an alley. As a consequence Lot 2 is practically reduced to the dimensions of 40 feet by 130 feet as a considerable part of the west 30 feet of this lot was dedicated in order that the dedicated portion might join the existing alley, there being a job between the older part of the alley and the part dedicated. An ordinance of the city of Detroit requires a three-foot ‘side yard on each side’ of every residential lot and a rear yard of not less than 30 feet.

For some time the city of Detroit had zoned defendant's lots for business use, but later rezoned them for residential use. In November, 1941, defendant instituted suit against the city of Detroit and the commissioner of the department of building and safety engineering to void the residential classification. This suit was pending at the time the case at bar was commenced.

Mack Avenue has developed from a dirt road to a paved avenue 120 feet in width since Grosse Pointe Manor Subdivision was platted, and it seems inevitable that its frontage will become almost exclusively devoted to business enterprises. Examination of the record convinces one that defendant's lots are more valuable for business than residential use. The record also indicates that use of the lots for residential purposes is not desirable; but these three lots can be used for residential purposes notwithstanding their altered dimensions. Even if it were impossible for defendant to use her lots for residential purposes, which appears to be the case in so far as Lot 225 (owned by third party) is concerned, it does not follow inevitably that the restriction should not be enforced.

Although a one-story frame real estate office, originally erected under a special permit, was located on Lot 112 for several years, we do not regard this fact as of any particular significance in this case, as that structure appears to have been temporary in nature and was removed. Under the circumstances, the trial judge's finding that in this subdivision there have been no violations of the restriction in question is justified.

The record is replete with evidence that plaintiffs knew of the restriction in...