Scott v. Armstrong

• Decision Date: 14 May 1951
• Docket Number: No. 57,57
• Parties: SCOTT et al. v. ARMSTRONG et ux.
• Court: Michigan Supreme Court

Page 712

47 N.W.2d 712

330 Mich. 504

SCOTT et al. v. ARMSTRONG et ux.

No. 57.

Supreme Court of Michigan.

May 14, 1951.

Schmalzriedt, Frye, Granse & Frye, Detroit, Robert A. Frye, Detroit, of counsel.

Fitzgerald, Walker, Conley & Hopping, Detroit, appellees. Peter L. LaDuke, Detroit, of counsel.

Before the Entire Bench.

BUTZEL, Justice.

Justice BOYLES, in his opinion, considered the desirability of the use of the Schaefer lots for non-residential purposes, the change in the character of the subdivision, the absence of a showing of damage on the part of the plaintiffs, and the large number of existing violations, and concluded that it would be inequitable to enforce the restrictions. We cannot agree that there has been a waiver of the restrictions, that the plaintiffs would not be damaged if the restrictions were set aside, or that the violations of the restrictions on Grand River Avenue, and other minor violations have sufficiently changed the character of the subdivision.

In the past, the primary and controlling issue in cases of this type has been the interest of the covenantees and we believe that Justice BOYLES has given insufficient weight to this facet of the problem. Owners and purchasers, as covenantees of land protected by reciprocal easements, should be able to rely on the fact that the character of a subdivision will remain unchanged. The restriction constitutes an important increment in the value of their property and the enjoyment of the use thereof. In contrast, the defendants bought their lot with notice of the restrictions and subject to them, only two years prior to the institution of this suit. If the restrictions were so burdensome as to make the land of less value, it can be presumed that the factor was considered in arriving at the price at which the burdened land was sold. As between the parties, it is clearly the covenantees who should be protected. We have not considered the interests of the public, for the public is not involved. We quote from Spence v. Kuznia, 307 Mich. 219, 223, 11 N.W.2d 865, 866: 'The fact that Saginaw street is now more suitable for commercial purposes does not nullify the restrictions. The question before us is as to the property rights of the plaintiffs, and not as to what might seem to be a more advantageous use of the property in the subdivision on Saginaw street.' See also, Bohm v. Silberstein, 220 Mich. 278, 189 N.W. 899.

Of the sixteen lots facing Schaefer road, eleven are unoccupied, two have been intermittently used for the parking of trucks, two are used regularly for non-commercial parking, and one has a home upon it. On the rear of Lot 1, which is platted as a Grand River lot, but with a large frontage on Schaefer road, there is a small one-story garage-like structure facing Schaefer road. It is used as a brake repair service. These sixteen lots on Schaefer are separated by an alley from the rear of eighteen lots which front on Hartwell avenue, the first street east of Schaefer road. The owners of eight of these eighteen lots are plaintiffs. It is obvious that if we find it inequitable to enforce the restriction as to Lot 15, it would also be inequitable to enforce the restrictions as to the other fifteen lots facing on Schaefer road. It is also evident that setting aside the restrictions would lower the value of the plaintiffs' properties.

'The rear of such a nonconforming structure would be immediately opposite the conforming homes and the owners thereof would have much of their privacy destroyed thereby. From the side of their homes or even from diagonally across the street, the outlook would be upon the unsightly rear of the nonconforming building. Owners nearby would be inconvenienced by the noise, dirt, and congestion of vehicular traffic along the side or in the rear of the nonconforming property.' Taylor Avenue Improvement Association v. Detroit Trust Co., 283 Mich. 304, 310, 278 N.W. 75, 78.

Nor can we say that there has been a waiver of the restrictions, or a change in character in the subdivision. It is claimed that there were five violations in the ninety interior lots in the subdivision. In Misch v. Lehman, 178 Mich. 225, 228, 144 N.W. 556, we said: 'The true rule seems to be that, even after one or more breaches, equity will grant relief if the restriction can be shown to be of value to complainant, and such breaches have not resulted in a subversion of the original scheme of development resulting in a substantial, if not entire, change in the neighborhood.' (Citing cases.) None of the five violations were of a serious nature, and there was no evidence that the violations 'resulted in a subversion of the original scheme of development * * *.' In Carey v. Lauhoff, 301 Mich. 168, 3 N.W.2d 67, 70, we did not find a waiver in twenty-three violations of a residential subdivision composed of one hundred eighty-nine lots, for no substantial change in the character of the neighborhood was found. The court applied the rule of Misch v. Lehman, supra. See also, Voorheis v. Powell, 261 Mich. 378, 246 N.W. 154, 85 A.L.R. 932. The trial judge in the instant case examined the premises and found that it was a 'very handsome subdivision.'

The nineteen lots on Grand River are separated by an alley from the residential portion of the subdivision. This alley borders on only five of the ninety interior lots in the subdivision. As to one plaintiff, the violations on Grand River are 850 feet distant, although his property is in the rear of the Schaefer road alley. Another plaintiff owns property 950 feet from Grand River. With one exception, none of the plaintiffs own lots which border the Grand River avenue lots of the subdivision.

In Spence v. Kuznia, supra, we held that violations of the restrictions, when not in the immediate vicinity of the plaintiff's lot, will not constitute a waiver.

'Violations in other blocks and on other streets did not require plaintiffs to run to court to prevent them, or, for failure to do so, remain supine when other and nearer violations of the restrictions threatened them with direct financial injury.' De Galan v. Barak, 223 Mich. 378, 382, 193 N.W. 812, 814.

In Farley v. Finn, 226 Mich. 205, 197 N.W. 571, 572, we said: 'This court has several times held in the last few years that failure of an owner in restricted territory to take action for prevention of violations in other blocks or on other streets in the restricted district does not necessarily deprive him of the right of enforcing the restrictions when a violation is attempted in proximity to his property which would especially and directly be injurious to him.' (Citing cases.)

Finally, there are the lots on Schaefer itself. Lots 23 and 24 have been used for intermittent truck parking, and Lots 9 and 10 have been used regularly for non-commercial parking. These violations involve no structures, and it is evident that this use of the lots is in no way comparable to the erection of business buildings and the carrying on of permanent business thereon. Polk Manor Co. v. Manton, 274 Mich. 539, 265 N.W. 457; Carey v. Lauhoff, 301 Mich. 168, 3 N.W.2d 67; Boston-Edison Protective Association v. Goodlove, 248 Mich. 625, 227 N.W. 772.

The trial judge heard the testimony, examined the exhibits and visited the premises. He said:

'I think it is undoubted that the property on Schaefer Avenue would sell for more if the restrictions were to be abrogated as to Schaefer Avenue, but I do not think it can be said affirmatively that the restrictions are no longer of value to the owners on Littlefield and Hartwell. There are 20 lots and 17 or 18 houses on Hartwell whose back yards are just across the alley from Schaefer, and their property would be directly and seriously damaged by a use for commercial purposes on Schaefer. The houses on the East side of Hartwell would front toward the back elevation of buildings, which under the City Zoning Ordinance would come into play immediately upon a determination that the restrictions no longer held good for Schaefer Avenue frontage, might be built to a height of 35 feet.

'* * * a decree denying a remedy to lot owners in this very handsome subdivision as it has been improved, would be something that would, in my judgment, unwarrantably deny to them proper protection for their lots under contract restriction.'

The decree of the trial court giving plaintiffs injunctive relief is affirmed, with costs to appellees.

REID, C. J., and CARR, BUSHNELL and SHARPE, JJ., concurred with BUTZEL, j.

BOYLES, Justice.

This is an appeal by the defendants from a decree enjoining them from using lot 15 fronting on Schaefer road in Wallace Brothers subdivision in Detroit, for nonresidential purposes. Defendant Joseph Armstrong is a plumber, and in 1946 defendants acquired said log on which to erect a building for use in his business. It has a frontage of 50 feet on Schaefer road and a depth of 181 feet. When Wallace Brothers subdivision was platted in 1911 this lot, together with all others in the subdivision, including those fronting on Schaefer road as well as the lots on Grand River avenue, were restricted to residential use. The subdivision extends one block north on Schaefer road starting at Grand River avenue. It lies north of Grand River avenue and east of Schaefer road, with 2 interior streets and 2 alleys running north and south. It has 125 lots in all, with 16 fronting on Schaefer road and 19 fronting on Grand River avenue. Lot 1, at the intersection of Grand River avenue and Schaefer road, while platted as fronting on Grand River avenue, has a much larger frontage on Schaefer road.

Only 1 residential dwelling has ever been erected on the 16 lots fronting on Schaefer road. This is on lot 17, was built 20 to 25 years ago, and is currently occupied by Mr. and Mrs. Dick, 2 of the plaintiffs in the case, as vendees in a land contract. The other lots on Schaefer road are either vacant or used for nonresidential purposes, as will be...