Polk Manor Co. v. Manton

• Decision Date: 02 March 1936
• Docket Number: No. 54.,54.
• Citation: 265 N.W. 457,274 Mich. 539
• Parties: POLK MANOR CO. v. MANTON et al.
• Court: Michigan Supreme Court

274 Mich. 539

265 N.W. 457

POLK MANOR CO.

v.MANTON et al.

No. 54.

Supreme Court of Michigan.

March 2, 1936.

Suit by Polk Manor Company against Walter W. Manton and others. From a decree for plaintiff, defendants appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Argued before the Entire Bench.

Samuel B. Keene, of Detroit, for appellants Walter W. Manton, Helen Manton Nightingale, and Carl Langer.

Griffin, Heal & Emery, of Detroit (Thomas V. Lo Cicero, of Detroit, of counsel), for appellants Charles F. and Meta B. Fuller.

Morris Garvett, of Detroit, for appellee.

BUTZEL, Justice.

Plaintiff is the owner of lots 21, 23, and 25, defendants of lot 26, all in Duffield and Dunbar's subdivision of lot No. 1, quarter section 45, 10,000-acre tract, Greenfield (now Detroit), Wayne county, Mich. Plaintiff's property is improved with a large and attractive six-story building, containing 94 apartments, located on the northeast corner of West Euclid and Second avenues, while defendants' lot is at the southeast corner of the same streets. The subdivision is laid out so that all the lots with the exception of those on Woodward avenue front on West Euclid avenue. The entrance to plaintiff's building is on the latter street. The lots in the subdivision were sold subject to the following restrictive covenant: ‘This conveyance is amde upon the express condition that no building should be erected upon said premises by said party of the second part, her heirs, representatives or assigns, excepting for the purpose of a dwelling only. That any building so erected shall not be less than fifteen feet from the lines of Euclid Avenue, and shall cost not less than $2500.00. Said party for herself, her heirs, executors and said Bethune Duffield hereby covenant, bargain and agree with said party of the second part, her heirs and assigns in selling land from the said subdivision the foregoing building restrictions should be incorporated in each and every deed, and that their heirs, executors, administrators, shall enforce such restrictions.’

The owners of all the lots in the subdivision with the exception of one lot at the southwest corner of Woodward and West Euclid have rigidly observed the restrictions as far as erecting buildings to be used for residential purposes. By acquiescence or consent the residences were not limited to single dwelling houses, but a number of buildings containing two or more apartments have been erected on the street. There is no controversy over the building line restriction which has been strictly observed. A house formerly stood on defendants' lot, but it has been torn down or removed for the purpose of erecting suitable buildings for use of the property as an oil and gasoline station. Plaintiff filed a bill to enforce such building restrictions as still exist. Testimony showed that some seven years ago there was a beauty parlor conducted in plaintiff's building. Many of the houses in the subdivision are being used for business purposes, such as dress making, cleaning establishments, beauty parlors, boarding houses, etc., all of which are being conducted from residences. No stores or buildings designed for business purposes have been built, with the exception of the single case above noted. There is a gas station on the west side of Second avenue abutting the alley in the rear of plaintiff's building, but located in another subdivision. Second avenue from Grand boulevard to Clairmount avenue, with the exception of a few sections, has changed from a residence to a business street. The residences at the northwest and southwest corners of Second and West Euclid avenues are being used respectively for a beauty parlor and dress making establishment. A more detailed statement of the changes in the character of Second avenue is set forth in Golden v. Davis, 266 Mich. 7, 253 N.W. 195, wherein we held that one living at the corner of Third and Gladstone avenues did not suffer sufficient injury so as to complain of a violation of a restriction in the same subdivision and on the same street but at the corner of Second avenue when at that point the...