Putnam v. Ernst

• Decision Date: 22 December 1925
• Docket Number: No. 116.,116.
• Citation: 206 N.W. 527,232 Mich. 682
• Parties: PUTNAM et al. v. ERNST et al.
• Court: Michigan Supreme Court

232 Mich. 682

206 N.W. 527

PUTNAM et al.

v.ERNST et al.

No. 116.

Supreme Court of Michigan.

Dec. 22, 1925.

Appeal from Circuit Court, Wayne County, in Chancery; Henry A. Mandell, Judge.

Suit by Herbert J. Putnam and others against Robert Ernst and others. From a decree conditionally restricting defendant's use of their lot, they appeal. Modified, and, as so modified, affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. John J. Sloan and Julius J. Lechner, both of Detroit (Francis W. Allen, of Detroit, of counsel), for appellants.

Yerkes, Simons & Goddard and Corliss, Leete & Moody, all of Detroit, for appellees.

CLARK, J.

The bill was filed by resident lot owners of the subdivision to enjoin violation of building restrictions. The subdivision involved is ‘Warner's subdivision of lot 6 of quarter section 45 of the Ten Thousand Acre Tract, Detroit.’ The lots lie on both sides of Hazelwood avenue, from Woodward avenue on the east to Hamilton avenue on the west, and are numbered from 1 to 120. Lot 60 is on the northwest corner of Woodward and Hazelwood, 135 feet on Woodward, 200 feet on Hazelwood. Defendants own the east 140 feet of the lot, and propose building a nest of small stores thereon, some facing and adjoining Woodward, others facing and adjoining Hazelwood. Lot 61 is on the southwest corner of Woodward and Hazelwood, and is also 135 by 200 feet. The two lots are restricted of record:

‘Second party agrees for herself, her heirs and assigns, that she will not build or erect a dwelling house upon said premises of a value less than $2,500.00 nor less than 15 feet from the Hazelwood avenue line and 50 feet from the Woodward avenue line, and to erect no saloon or store thereon or other building except for residence purposes.’

The other lots all front on Hazelwood, and are nearly all 40 feet in width, and it may be said that such lots, except 7 of them, are restricted of record to ‘dwelling,’ ‘dwelling house,’ or ‘residence purposes,’ with further restriction that no building shall be nearer than 15 feet to the street line, and that such restrictions have been observed. Some of the residences are larger than single, but the lot owners construed the restrictions to permit apartment buildings, two-family flats, and double houses, and, as so construed, the restrictions have not been violated, except as to lot 61. On the corner of that lot in 1917 a bank was erected, up to the Woodward lot line, but back 15 feet from the Hazelwood lot line. On the Hazelwood side a walk leads from the sidewalk to a door, with the word ‘Offices' carved in stone above, leading up stairs to business offices which are rented and occupied. South of the bank and on the same lot is a hotel, built in 1923, out to the Woodward lot line, having four stores used and occupied as such, facing Woodward, on the ground floor. Back of the bank and the hotel is an alley. The record does not show to what extent it is used in connection with the stores, but an exhibit indicates that stores and the hotel have access to it. At the inner end of the alley are some concrete ash receptacles. West of the alley is an apartment house, then a driveway, then another apartment house, all on said lot 61.

In the subdivision, therefore, there has been no violation of the 15-foot building line on Hazelwood, nor are there any business places on the avenue, except as above noted.

An excerpt from a finding of the trial court:

‘That these restrictions upon lot 60 are still of value to the plaintiffs. * * * That the character of Woodward avenue has so changed that a balancing of the equities requires that defendant Ernst be permitted to use the Woodward avenue frontage of his lot for business purposes under such restrictions and conditions as will preserve the building line and the residential character of Hazelwood avenue and will prevent undue injury to plaintiffs. * * * That the building of stores of the character proposed by defendant Ernst on the Woodward avenue front only, back to a depth of 50 feet, will not greatly injure plaintiff Allen or the other plaintiffs, provided the same are kept 15 feet from Hazelwood avenue line, and provided no buisiness is permitted to be done on or through Hazelwood avenue.’

Decree was entered accordingly. Defendants have appealed. As plaintiffs have not appealed, it will be taken as settled that the trial court was right in relieving lot 60 of restrictions, in so far as it was relieved. The main question presented by the appeal is: Ought not lot 60 to have been freed wholly of the restrictions? Was the court right in saving to plaintiffs the 15-foot building line on the Hazelwood side of the lot, and in preserving to Hazelwood its character of residence street?

That 7 of the 120 lots were not restricted of record does not destroy the general plan of restrictions in the subdivision. Harvey v. Rubin, 219 Mich. 307, 189 N. W. 17. From what has been said it is apparent that the character and environment of the subdivision have not changed so materially as to make it inequitable to enjoin a breach of the restrictions. Moore v. Curry, 176 Mich. 456, 142 N. W. 839;Benzing v. Harmon, 219 Mich. 532, 189 N. W. 69; 18 C. J. 400.

Most of the lots are restricted to ‘dwelling house.’ Cases, it is pointed out, hold that double houses, four-family flats, and apartment houses may not be erected on lots restricted to ‘dwelling house,’ and it is argued that, as the erection of several such structures has been permitted, defendants' property is now released from all restrictions.

The record shows that there was a contest in the circuit court in chancery in Wayne county, wherein it was sought to enjoin the erection of a double house in this subdivision. The decree was against plaintiffs. No appeal was taken. Thereafter the residents of the district seem to have construed the restrictions as permitting buildings for residence purposes, including those of the character above named. But the subdivision, except as noted on Woodward, has been preserved as a strictly residential district. The restrictions were not waived. There was no intention to waive. As construed, in the light of experience and litigation, they have...