Mueller v. Schier
| Decision Date | 17 November 1925 |
| Citation | 189 Wis. 70,205 N.W. 912 |
| Parties | MUELLER v. SCHIER ET UX. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Gustive G. Gehrz, Judge.
Suit by Louise Mueller, as surviving plaintiff in the suit instituted by her and Rudolph C. Mueller, Jr., against Rudolph W. Schier and wife. Judgment for plaintiff, and defendants appeal. Affirmed.
This is an appeal by the defendants from a judgment rendered by the circuit court for Milwaukee county granting a mandatory injunction requiring the defendants to remove a porch claimed by the plaintiff to extend over on restricted land and restraining the defendants from constructing or maintaining a porch within the restricted area, being within 25 feet of the lot line. The trial court found that the Matthieson Land Company was a corporation and acquired title by various purchases before November 18, 1914, of a tract of land now in the city of Milwaukee, embracing the premises now owned by the plaintiff and the defendants; that said company bought the land in question for the purpose of selling the same in lots subject to restrictions intended to be imposed on all the lots, which should be consistent with a general scheme of development, and they were intended to be for the benefit of all the lots intended to be sold and in pursuance of a general scheme for preserving the property as first-class residence property by future purchasers and their grantees; that in pursuance of such general scheme, and to induce purchasers to buy lots, the land company conveyed a large number of lots in said tract to various purchasers, and in the deed executed to each inserted six covenants:
“First: No building shall be erected or maintained or moved on any part of said land which extends nearer the parkway hereinafter mentioned than 25 feet.”
The deeds contained other covenants relating to the erection of fences, prohibiting the use of the land for certain business purposes (specifying them), the erection of flats or apartment houses, and providing that no house should be erected costing less than $4,000. In the sixth covenant it was provided that the covenants of restriction should continue in force until abolished “by a vote of the owners of at least three-fourths of the frontage abutting upon said parkway, and shall in no wise be abolished or violated for a space of at least 50 years.” It was further provided that the restrictions should be deemed covenants running with the land and enforceable by lot owners by injunction; that the entire tract should be preserved as a secluded, high-grade residence district. Each deed contained a covenant by the land company that it would grant and dedicate to the grantee and his heirs and assigns and to all others, their heirs and assigns, who should own and purchase land abutting thereon, a tract therein described 1,850.77 feet in length and 100 feet in width, and the land company, in compliance with this covenant, executed and delivered on November 15, 1916, a dedication deed in accordance with said covenant, which was duly recorded. On the 23d of May, 1910, the land company conveyed to one Frank Specht a parcel of land to which the defendants afterwards acquired title, being the land now owned by them. In this conveyance to Specht it was expressly covenanted as part of the terms of the purchase that said six covenants should form a part of the purchase agreement.
It was further found that on February 1, 1911, the land company conveyed a certain tract to one Joseph Dierbeck and his wife, through whom the plaintiff afterward acquired title to the premises now owned by her. The conveyance to Dierbeck also contained six covenants substantially like those contained in the conveyance to Specht, but in the first restriction the following clause was added:
“This clause shall be interpreted to include porches and every permanent erection which will obstruct view in any degree.”
The premises purchased and owned by the plaintiff adjoin those owned by the defendants, and the defendants' residence is on the corner of Fifty-Third street and Pabst avenue, and the plaintiff's residence is the next one north of the defendants' building, with one unimproved ordinary lot between the two residences.
It was further found that the land company, while still owning certain portions of land abutting upon the parkway, with other owners, conveyed an easement to the city of Milwaukee for street and boulevard purposes only in a certain tract of land, “100 feet wide which before and after the conveyance of said easement to the city was and still remains divided as follows: A parkway 34 feet wide on each side of the street between the lot line and curb line of street, which said street is 32 feet wide from curb line to curb line, and that each parkway consists of wide grass plots ornamented with trees, creating a beautiful appearance, and in the center of each parkway is a walk 6 feet wide, the whole making an unusually wide and very attractive street, consistent with a first-class residence district, and that this was done in harmony with the original scheme, and in furtherance and continuance and preservation of the same.”
The defendants and their predecessors purchased their lots upon the footing that said restrictions were to inure to the benefit of the other lots included in the general scheme as well as the lots which were retained by the common grantor of the land company. The plaintiff, relying on the restrictive covenants, erected a costly home, and built the front line of their home in accordance with the first restrictive covenant above named. All the residences in the restricted neighborhood are bungalows of considerable cost.
The trial court also found that the defendants have constructed ; that, unless the defendants are restrained, they will cover the veranda porch with a roof; and that the porch will be a solid and permanent part of the building of the defendants; and that even in its present form it is a substantial and integral part of the building, and occupies at least 9 feet of the restricted 25-foot area, and is in direct violation of said first covenant, and seriously obstructs the view from the plaintiff's residence, and also obstructs the plaintiff's light and air, “and mars and spoils the entire uniformity of the building line on Fifty-Third street from Pabst avenue to Elm street, in the city of Milwaukee, Wis.”
It was also found that the plaintiff Rudolph C. Mueller died on August 13, 1924, after the commencement of this action, and the plaintiff Louise Mueller became the owner of the lot formerly owned by herself and her husband; that neither the plaintiff nor her predecessors in title violated, waived, or abandoned any of the restrictive covenants; that the defendants had both constructive and actual notice of the existence of said restrictive covenants before they began to erect this building and the porch, and also had such notice before they acquired said real estate, and had notice that such restrictions were for the benefit of the other lots included in the general scheme as well as such lots as were retained by the common grantee of the land company; that defendants had notice that other owners of lots located in the restricted area had built their buildings in compliance with said lot line restrictions; that the original plan of seclusion and purpose of private and common ownership and use of the land as a perpetual private park has not been abandoned by the land company nor by the other owners of land abutting on the parkway; and that the conveyance to the city of Milwaukee of an easement for park and boulevard purposes only did not constitute abandonment of the original scheme; that the plaintiff and her husband, now deceased, had no notice or knowledge that the defendant Rudolph Schier...
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...was "not as vigilant as he could have been" in his delayed response to Liebovich's construction of his house. Citing Mueller v. Schier, 189 Wis. 70, 77, 205 N.W. 912 (1925), they tell us that the law "does not require landowners constantly to police their neighbor's compliance with deed res......
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...Spence v. Frantz, 195 Wis. 69, 70, 217 N.W. 700 (1928); Hustisford v. Knuth, 190 Wis. 495, 496, 209 N.W. 687 (1926); Mueller v. Schier, 189 Wis. 70, 81, 205 N.W. 912 (1926); Gardiner v. Tisdale, 2 Wis. (*153) (1853). When the highway is discontinued or vacated the land reverts to the owner ......
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...the existence of use restrictions, even when their own deed does not specifically set forth the restrictions. Mueller v. Schier, 189 Wis. 70, 77, 205 N.W. 912, 915 (1926).9 Even so, we note that valid use restrictions are limitations, not restraints, on alienation, and do not implicate the ......
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Berger v. Town of New Denmark, 2011AP1807–FT.
...takes only an easement for highway purposes”); see also Stuart v. City of Neenah, 215 Wis. 546, 255 N.W. 142 (1934); Mueller v. Schier, 189 Wis. 70, 205 N.W. 912 (1925). Early versions of Wis. Stat. § 83.08 permitted only the acquisition of a right of way, but by 1951 the statute had been a......