Morgan v. Matheson

• Decision Date: 01 March 1961
• Docket Number: No. 56,56
• Citation: 107 N.W.2d 825,362 Mich. 535
• Parties: Henry S. MORGAN, Mary M. Grix, and Catherine Morgan, Plaintiffs and Appellants, v. Elinore Louise MATHESON, Muriel Constance Matheson, et al., Defendants and Appellees.
• Court: Michigan Supreme Court

Page 825

107 N.W.2d 825

362 Mich. 535

Henry S. MORGAN, Mary M. Grix, and Catherine Morgan, Plaintiffs and Appellants, v. Elinore Louise MATHESON, Muriel Constance Matheson, et al.,

Defendants and Appellees.

No. 56.

Supreme Court of Michigan.

March 1, 1961.

Piggins, Rehn, Balmer, Grigsby & Skillman, Detroit, for plaintiffs and appellants.

Walter M. Nelson, Detroit, for Hector A. Johnson and Senia A. Johnson.

Goldsmith & Rosen, Detroit, for Clare W. Forbes.

Birnkrant, Birnkrant & Birnkrant, Detroit, for Jacob Holskin and Ethel M. Verlee. Wilcox, Lacy, Lawson, Kirkby & Hoffman, Detroit, of counsel.

Weiswasser, Jaffe & Grant, Detroit, for Muriel Constance Matheson and Elinore Louise Matheson. Aaron Weiswasser, Detroit, of counsel.

Before the Entire Bench.

EDWARDS, Justice.

In this equity action plaintiffs, residential property owners, sought injunctive relief to enforce a subdivision residential restriction against defendants to keep them from constructing 2 commercial parking lots. After taking extensive testimony, the circuit judge denied the relief sought, principally on the ground that the restrictions had been abandoned. Plaintiffs appeal.

The DeWitt H. Taylor subdivision was platted in 1907. It extended west from Woodward avenue on both sides of Taylor avenue for a distance of 3 blocks, terminating at Hamilton (now John C. Lodge expressway). It encompassed 98 lots, all of which were made subject to the following restrictive covenant:

'That there shall be nothing but a single dwelling house at least 2 stories in height and necessary outbuildings erected on said lot, the front line of such house shall not be less than 25 feet from the front line of said lot; that no fence or other obstruction to the view except trees shall be placed in front of the building line and that the grade from the line of the sidewalk to said building line shall be 6 inches to every 10 feet.

'That the buildings now or hereafter erected on said lot shall be used only for ordinary and usual purposes of a residence and not othersise.'

The subdivision developed as a fine residential area, with large 2-story homes. After some years, influences of big-city blight began to affect it. Hamilton and Woodward avenues, on each end of the subdivision, became busy commercial streets. The street immediately north of Taylor, Clairmount, acquired a streetcar line in 1927 and deteriorated in property value.

In 1935 the owner of lot 98, on the southwest corner of Taylor and Woodward, leased the lot for construction of a gasoline station fronting on Woodward. The Taylor avenue improvement association sought an injunction because of the violation of the building restriction and this Court, in Taylor Avenue Improvement Association v. Detroit Trust Co., 283 Mich. 304, 278 N.W. 75, permitted, upon certain conditions, the use of the lot for such commercial purpose, holding that the lot, due to changed conditions at the Woodward intersection, could not be developed residentially and that no damage would result to the subdivision from the gasoline station

Subsequently, in 1947, lot 1 immediately across Taylor, also fronting on Woodward, was developed with a commercial building originally used as an automobile dealership. This time there was no litigation, the situation being a close parallel to that prevailing as to lot 98.

Down to the start of this litigation, no other permanent commercial uses are shown in the subdivision cxcept for the fact that for many years a flower shop fronting on Second avenue has occupied the rear portion of lot 86. No protest as to this use is shown in this record.

By 1939 other significant changes had taken place. Several of the homes by then were taking in roomers, apparently without any objection by any subdivision property owners.

This practice expanded even after the subdivision was zoned R1. In 1957 the city of Detroit sought to enforce the R1 provisions prohibiting rooming houses in the Taylor subdivision, whereupon 16 of 24 home owners in the block between Woodward and Second avenues petitioned the common council to change the zoning of that block to RM. Plaintiff Catherine Morgan was among the signers although she did not herself keep roomers. The common council did amend the ordinance to an RM classification, which included among its permitted uses rooming houses and

'open parking lots for the storage of self-propelled passenger vehicles, if the space used for parking is separated from all required yards and contiguous streets by an ornamental wall or fence 4 feet in height, all entrances and exits to such lots to be determined by the Commission and if found by the Commission to be not injurious to the surrounding neighborhood and not contrary to the spirit and purpose of this ordinance.'

Since April, 1958, the building on lot 1 (formerly used by an auto dealer) has been vacant. Testimony for defendants established that a principal reason for difficulty in locating a tenant was lack of any parking facility. In February, 1959, the owners of lot 1 leased the building to the Kroger Company for a supermarket. The lease was made contingent on the lessee being able to acquire and use for parking purposes lots 2, 3, 4, 96, 97 and the east 7 feet of lot 5. The lessor has now obtained options on these lots from their owners, defendants herein.

The department of buildings and safety engineering of the city of Detroit, however, denied a permit to raze the buildings for the purpose stated, holding that customer parking was a commercial use not permitted in RM zoning.

On application to the board of zoning appeals for an exception to allow the use contemplated, the lessor was first denied and then (on rehearing) granted a permit. The board of zoning appeals found practical difficulty and unnecessary hardship and held that the proposed Kroger parking lots would not be injurious to the surrounding neighborhood. The permit was conditioned on the applicant's providing improvements in the nature of green belts, fences and specified off-street entrances and exits, to seek to mitigate the effect on the neighborhood.

Plaintiffs, 3 of whom owned a house on lot 95 immediately adjacent to 1 of the proposed parking lots and directly across the street from another of them, then commenced this suit. The testimony at trial served to establish the facts set forth above, and to record the differing views of expert witnesses called by the parties as to the effect of the proposed Kroger parking lots on the adjacent neighborhood.

At the conclusion of the hearing, the circuit judge entered a lengthy opinion denying the injunction and dismissing the bill of complaint. He specifically found that plaintiffs voluntarily sought a change in zoning to allow rooming houses, that they had abandoned the restrictions and that changed conditions in the surrounding neighborhood had made them valueless. The circuit judge spelled out at some length the integration of occupancy of the surrounding neighborhood, and emphasized the growth of the rooming-house uses in the years between the opening of the subdivision and the present. He held plaintiffs were guilty of laches and were estopped from now enforcing the restrictions. And he held that the proposed parking lots would not only not damage plaintiffs' property, but would probably enhance it.

The racial integration of a subdivision has, of course, no bearing upon the legal rights of property owners to enforce residential restrictions. Nor does a change in use in the area surrounding the subdivision. Monroe v. Menke, 314 Mich. 268, 22 N.W.2d 369; Bohm v. Silberstein, 220 Mich. 278, 189 N.W. 899. Nor does a change in zoning override restrictions placed on deeds. Abrams v. Shuger, 336 Mich. 59, 57 N.W.2d 445; Phillips v. Lawler, 259 Mich. 567 244 N.W. 165; Cooper v. Kovan, 349 Mich. 520, 84 N.W.2d 859.

The principal questions posed by this case, as we see them, are:

1) Does the development of substantial rooming-house usage in a residentially restricted subdivision constitute an abandonment of the restriction as to a commercial use?

2) Assuming a negative answer to the first question, does the added factor of the commercial uses shown on this record sustain the circuit judge's finding of abandonment of the restrictions?

There is no doubt that rooming houses are inconsistent with the 'single dwelling house' restriction of the Taylor subdivision. Carey v. Lauhoff, 301 Mich. 168, 3 N.W.2d 67. There is also no doubt that this record clearly shows that rooming houses have become so...