Schneider v. Eckhoff

• Decision Date: 12 January 1926
• Citation: 206 N.W. 838,188 Wis. 550
• Parties: SCHNEIDER ET AL. v. ECKHOFF ET AL.
• Court: Wisconsin Supreme Court

188 Wis. 550

206 N.W. 838

SCHNEIDER ET AL.

v.ECKHOFF ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1926.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Suit by Nicholas Schneider and others against William F. Eckhoff and another. Judgment for plaintiffs, and defendants appeal. Affirmed in part, modified in part, and cause remanded, with instructions.Lenicheck, Boesel & Wickhem, of Milwaukee (Frank T. Boesel, of Milwaukee, of counsel), for appellants.

Vincent D. Hennessey, of Milwaukee, for respondents.

DOERFLER, J.

It appears that the parties are the owners of the following real estate in the continuation of Merrill Park, in the Sixteenth ward of the city of Milwaukee: Schneider and wife, lot 7 in block 11; Kiefer and wife, an equitable interest in the north 30 feet of the south 60 feet of lots 5 and 6 in block 12; Satorius and wife, lot 4 in block 12; and Eckhoff, the north 60 feet of lots 5 and 6 in block 12. That the defendant Hercules Construction Company is a Wisconsin corporation, and the contractor for the defendant Eckhoff in the contruction of the building hereinafter referred to. That in the year 1885 Mary E. Merrill and the executors and trustees of the estate of S. S. Merrill, deceased, were the owners of the property included in said continuation of Merrill Park, and in that year caused the same to be platted, and the plat duly recorded in the office of the register of deeds for Milwaukee county. That the lands included within said plat are bounded on the south by St. Paul avenue, on the east by Thirtieth street, on the north by Clybourn street, and on the west by Thirty-Fifth street; that the subdivision embraces five blocks, each containing 20 lots. That when said subdivision was platted, the owners thereof conceived a general plan or scheme pursuant to which the lots were to be sold with certain restrictions, with the idea of enhancing the value, not only to the then owners, but to all subsequent purchasers, their successors and assigns. The proposed restrictions affected, first, the use of the premises; and, second, the establishment of a uniform building line. The proposed building line restrictions were as follows: On Clybourn street no nearer than 55 feet from the center line of such street; on St. Paul avenue no nearer than 55 feet from the center line of said avenue; on Thirtieth, Thirty-First, Thirty-Second, Thirty-Third, and Thirty-Fourth streets, no nearer than 45 feet from the center line of the respective street; and on Thirty-Fifth street no nearer than 48 feet from the center line of said street. The general plan outlined to effectuate the above scheme was manifested in part by the drafting and printing of a sufficient number of blank deeds, which were complete in all respects excepting only that they required the insertion of the particular data necessary for the execution of a specific deed. Such insertions consisted of the name or names of the grantee or grantees, a description of the property, the building line, etc. All of these deeds contained the following provision (the insertions above referred to omitted):

“Provided, however, that it is mutually understood and agreed by and between the parties hereto that this deed is executed and delivered upon the express condition that the front line of any building or buildings erected or rebuilt or moved upon said premises shall be no nearer the center of ______ street than ______ feet, and also upon the express condition that said premises and no part thereof shall at any time be used or suffered to be used for the manufacture, sale, or other disposal of spirituous, malt, brewed, vinous, ardent, fermented, or intoxicating liquors, drinks, or beverages nor shall a saloon be kept thereon, nor any building in which any person whomsoever shall vend, sell, deal, or traffic in any spirituous, malt, brewed, vinous, ardent, fermented, or intoxicating liquors, drinks, or beverages, and that said premises shall not, nor shall any part thereof be, used or occupied by any person or persons whomsoever for a livery, sale, or boarding stable, or for any business detrimental to the interest of a first-class residence neighborhood, and upon the happening or suffering of either, any, or all of the aforesaid events or contingencies this deed shall become forfeited, and the premises herein described and all the rights herein conveyed shall at once revert to and revest in and become the property of said first parties, their successors or assigns (without any declaration of forfeiture or act of reentry, and without any other act by first parties to be performed, and without any right of said second party to reclamation or compensation for moneys paid or improvements made), as absolutely, fully, and perfectly as if this deed had never been made.”

All the purchasers of said lots embraced within said subdivision took the same from the original owners with notice of said restrictions, and all of the parties hereto had actual notice thereof and of said general scheme, and all of the lots in said subdivision have been sold. The deed to the defendant Eckhoff from his immediate grantor was given expressly subject to said restriction. The defendant Eckhoff threatened to build and is building a structure on said premises owned by him, which is nearer than 55 feet from the center of Clybourn street, to wit, 40 feet from the center of such street, and which is designed and intended to be used in part for residence purposes, and in part to house stores, offices, a barber shop, and a drug store.

Plaintiffs herein contend that the restrictive provisions above set forth prohibit the erection of a building to be used in part for business and in part for residential purposes; that to comply with these restrictive provisions residences alone can be built, and such residences can be used solely for residential purposes. On the other hand, the defendants concede that the premises cannot be used for all business purposes; that certain classes of business are specifically prohibited, but that such prohibited classes do not include stores, offices, barber shops, and drug stores.

This subdivision is located a short distance north of the Menominee Valley, in the city of Milwaukee. Along the northerly end of this valley is located the main line of the Milwaukee road, used for the transportation of freight and passengers through this state, and as far west as the Pacific coast. Immediately to the south of the main line of the road is located the extensive shops of the railroad, wherein are employed thousands of mechanics and workmen engaged in the construction and repair of cars and engines. The...