R.R. Imp. Ass'n v. Thomas

• Citation: 131 N.W.2d 920,374 Mich. 175
• Decision Date: 04 January 1965
• Docket Number: No. 54,54
• Parties: R. R. IMPROVEMENT ASSOCIATION, a Michigan Corporation, et al., Plaintiffs, v. Helen J. THOMAS, individually and as Guardian of her minor children, Defendant, Counter-Plaintiff and Appellant, and Township of Bloomfield, a Municipal Corporation, Defendant, v. BROOKSIDE HILLS PROTECTIVE ASSOCIATION, a Michigan Corporation, et al., Counter-Defendants and Appellees.
• Court: Supreme Court of Michigan

Page 920

131 N.W.2d 920

374 Mich. 175

R. R. IMPROVEMENT ASSOCIATION, a Michigan Corporation, et

al., Plaintiffs, v. Helen J. THOMAS, individually and as Guardian of her minor children, Defendant, Counter-Plaintiff and Appellant, and Township of Bloomfield, a Municipal Corporation, Defendant, v. BROOKSIDE HILLS PROTECTIVE ASSOCIATION, a Michigan

Corporation, et al., Counter-Defendants and Appellees.

No. 54.

Supreme Court of Michigan.

Jan. 4, 1965.

Maurice A. Merritt, Birmingham, for appellant.

Howlett, Hartman & Beier, Pontiac, for counter-defendants and appellees.

Before the Entire Bench.

BLACK, Justice.

On too many occasions in recent years this Court has found it necessary to remand equity cases for a reason known specially to equity's jurisdiction. See Sternberg v. Baxter, 373 Mich. 8, 18, 127 N.W.2d 872; Falkner v. Brookfield, 368 Mich. 17, 25, 117 N.W.2d 125; Kent v. Bell, 368 Mich. 443, 451, 118 N.W.2d 486; Kenny v. Village of Novi, 367 Mich. 75, 76, 77, 116 N.W.2d 211, and Crocker v. Crocker, 362 Mich. 6, 8, 106 N.W.2d 164, all of which quote or cite Culy v. Upham, 135 Mich. 131, 97 N.W. 405. In Culy v. Upham this regularly quoted passage appears (p. 135, 97 N.W. p. 407):

'We do not wish, by our silence, to seem to approve the procedure adopted in this case. If we had disagreed with the trial judge on the legal proposition discussed in this opinion, we could not have made a final disposition of the case. We should have been forced to remand the record for another hearing in the court below. As a general rule, suits at chancery should be so tried in the lower court, that when they are appealed this court may finally dispose of the issue raised by the pleadings.'

This chancery case was not thus tried. It was tried upon pleadings and exhibits, motions for summary judgment, view of the subject premises by the trial judge, and argumentative statements of fact by counsel. No opinion of the trial judge, or findings of fact by him, were filed. The judge merely said 'I feel that the motion [for summary judgment] is well taken and I grant the motion.' The result was a decretal judgment permanently enjoining appellant from using the west 70 feet of Lot 15, of the residentially restricted subdivision we shall describe, for the purpose sought below by her. She appeals.

Oakland County's Brookside Hills Subdivision makes up and estate type of highly restricted residential property. The lots in the subdivision are unusually large. Some of the winding roadways as platted, South Hills road included, lead into dead ends. The complete plat, approved and recorded in 1924, dedicated all roadways as platted 'to the owners of lots in said subdivision.' The recorded restrictions brought to scrutiny by appellees' motion for summary judgment include clause (b). Additional clauses (4) and (5), upon which clauses appellees also rely, will be considered in division 'Second' infra. Clause (b) reads:

'(b) That each lot and buildings thereon shall be used only for strictly private residence purposes, and no building shall be moved onto any lot or lots in said plat.'

Appellant Thomas, individually and as guardian of the estates of her two minor children, owns the west 70 feet of lot 15 of the subdivision; also a much larger tract adjoining lot 15 on the south. Lot 15 extends 397.54 feet east-west along the south side of slightly curving South Hills road. Its south boundary, which at the specific point is also one of the two south boundaries of the plat, measures due east-west 373.18 feet. The mentioned tract is not a part of the subdivision and is known as parcel 3. Appellant desires to utilize parcel 3 for residential purposes and, to gain ingress and egress between parcel 3 and South Hills road as platted, proposes to grade and maintain a connecting roadway over the 70 foot strip. Exhibit 2, a sketch not drawn to scale, follows. It depicts the location and relation of the respective lots and parcels.

The 'lots' designated in exhibit 2 are in the subdivision. The 'parcels' are not. Exhibit 2 includes but a small part of the subdivision.

Exhibit 2

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In her amended pleading (styled counter complaint) appellant alleges:

'II

'That the defendant Thomas has on several occasions, the last occasion being during the month of June, 1963, requested the said Brookside Hills Protective Association and some owners of land in Brookside Hills Subdivision to permit her, without intervention of this court, to use the west 70 feet of said Lot No. 15 of Brookside Hills Subdivision for ingress and egress to the lands of these minor children, known as parcel 3 of the said Gnau unrecorded plat area, and which land abuts said Lot 15 on the south. That such request has always been coupled with the offer to impose on said adjoining land the same restrictions upon the use thereof that apply to the lots lying within the said subdivision. This request has always been rebuffed.'

To such allegation appellees pleaded:

'II.

'Answering paragraph II of the amended counter complaint, these counter-defendants admit the allegations therein set forth and in further answer say that the defendant's offer as a practical matter is a nullity, that her offer cannot be actually accomplished and that the allegations set forth in said paragraph are immaterial.'

Appellant alleges that there is no other way, except by expensive bridging or similar crossing of the Rouge Valley, to connect parcel 3 with an outlet. ¹ Appellees deny such allegation. That issue remains unsettled. So much for facts thus far disclosed.

First: An important question of property law is presented. Both counsel have briefed it with diligence and manifest understanding that whatever we say of it will affect more--much more--than this Brookside Hills controversy. The issue is bound to recur, regularly, as like residential restrictions are correspondingly tested by outlet-inlet demands. Such being the case we have decided to treat the point now, so far as that may safely be done in the absence of desirable proof and findings. Thus we may eliminate another appeal after proceedings on remand are completed.

Appellant states the question this way:

'In a subdivision, restricted for residence purposes, is the use of a portion of a lot therein for ingress to and egress from abutting land outside the subdivision, violative of such restriction of use?'

The question both counsel would have us decide is broader than that. It adds up to this: Considering a subdivision thus dedicated and restricted, where the owner of such lot-portion offers to impose upon abutting property (likewise owned by him) the same residential restrictions as are applicable to lots within the subdivision, may he utilize the aforesaid portion to connect such abutting property with one of the roadways of the subdivision without violating the residential restrictions? The answer, given now prior to the taking of testimony, will not as we shall see decide the case. It will however assist due disposition thereof.

There is a modern annotation headed 'Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant' (25 A.L.R.2d 904). The annotator's general summation (p. 906) provides an appropriate opening for discussion:

'Generally speaking, the cases disclose that the courts are inclined to hold that the maintenance, use, or grant of a right of way across property restricted in its use is a violation of the restriction if such maintenance, use, or grant seems to be inconsistent with the parties' intention in creating or agreeing to the restriction and with the object sought to be thereby accomplished, while if it does not interfere with the carrying out of the parties' intention and the purpose of the restriction, it will not be held to be a violation.'

Pursuing this, counsel have requested that we examine Baxendale v. Property Owners Ass'n, 285 App.Div. 1148, 140 N.Y.S.2d 176; Edgewood Park Ass'n v. Pernar, 350 Mich. 204, 86 N.W.2d 269; Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619; Klapproth v. Grininger, 162 Minn. 488, 203 N.W. 418, 39 A.L.R. 1080; Duklauer v. Weiss, 18 Misc.2d 747, 182 N.Y.S.2d 193; Cook v. Murlin, 202 App.Div. 552, 195 N.Y.S. 793, and other less applicable authorities. All such authorities are instructive but not particularly helpful. The reason stems from quoted paragraph 'II' of appellant's said counter complaint, which paragraph we are obliged presently to accept as true.

The pinpointed fact is that appellant has built her case upon more recent Bove v. Giebel, 169 Ohio St. 325, 159 N.E.2d 425 (followed in McInerney v. Sturgis, 37 Misc.2d 302, 234 N.Y.S.2d 965). The Bove Case lays down what the court in McInerney said is 'an equitable rule to be applied to cases of the instant kind.' The facts in Bove are much like those with which we--in the instant case--are thus far acquainted. The court reasoned and ruled:

'As to property in a subdivision, that is restricted to use for residence purposes only, there have been decisions preventing its use as a means of ingress to and egress from property outside the subdivision that is not restricted to the same extent as the property within the subdivision. See 14 American Jurisprudence, 635, Section 255 and supplement thereto, 25 A.L.R.2d 904, 175 A.L.R. 1191, 1207, 39 A.L.R. 1083. However, we have found no cases involving a situation such as presented by the instant case where the property outside the subdivision will be restricted by its owners to the same extent as that within the subdivision. Hence, our conclusion is that the owners of a lot in a subdivision, which lot is restricted to use 'for residence purposes only,' may use such lot as a means of ingress to and egress from adjoining land that they own outside the subdivision if they impose upon such outside land the same restrictions that are applicable to lots within the subdivision.'

We agree,...