Sheridan v. Kurz

• Decision Date: 04 March 1946
• Docket Number: No. 8.,8.
• Citation: 22 N.W.2d 52,314 Mich. 10
• Parties: SHERIDAN et al. v. KURZ et al.
• Court: Michigan Supreme Court

314 Mich. 10

22 N.W.2d 52

SHERIDAN et al.

v.KURZ et al.

No. 8.

Supreme Court of Michigan.

March 4, 1946.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Oakland County, in Chancery; H. Russel Holland, Judge.

Suit by Patrick Sheridan and others against Russell G. Kurz and another to restrain the defendants from violating building restrictions. From the decree, the defendants appeal.

Affirmed.

Before the Entire Bench.

Odin H. Johnson, of Pontiac, for defendants and appellants.

Estes & Cooney, of Pontiac, for plaintiffs and appellees.

BUSHNELL, Justice.

Plaintiffs own lots, on which they reside, in the McConnell addition to the city of Pontiac. Defendants Russell G. Kurz and wife live on lot 45 in this subdivision, their title having been acquired by deed from Adolph F. Netzel and wife on June 21, 1943. This subdivision was platted in 1898, and various recorded deeds since that date, including that of defendants, contain covenants restricting the use of the premises to ‘residence purposes only.’ According to the testimony, this subdivision consists of 140 lots, and the only properties that have ever been used for other than residence purposes are those now occupied by ‘The American Legion Home, a Lutheran Church and a school operated by said church.’

Defendants' grantor, Netzel, purchased lot 45 in 1935, and occupied it thereafter as a home. He never had any signs indicating that he used the premises for business purposes.

In 1937, Netzel erected a frame garage 22x30 feet on the rear of his lot, and in 1938 enlarged this garage by a 16x22 foot, one-story frame addition, with a cement floor. Netzel at the time was operating the Acme Auto Parts on North Perry street, where he repaired and rebuilt cars. He testified that, after disposing of his Perry street wrecking yard, he did experimental work on engines, which he rebuilt in the garage at his home, and that he employed for this purpose from three to six men. He stated that he always had a number of cars and trucks in and out of the property from time to time, and that he was also interested in similar businesses in Durand, Michigan, and Fostoria, Ohio.

The building in question had the appearance of a three-car garage and was equipped with a chimney and facilities for heating. Netzel had a 220 volt power line run into the garage and had six engine rebuilding stands therein, equipped with gas and compressed air lines. Although Kurz had the title examined and was advised that the use of the property was restricted to ‘residence purposes only,’ he proceeded to operate a commercial garage, where he dismantled, wrecked, and repaired motor vehicles. Plaintiffs, after being unsuccessful in securing any relief through the city authorities, filed their bill of complaint and obtained a temporary injunction restraining Kurz from violating the building restrictions.

When the case was tried, those plaintiffs who testified stated that Netzel did not use the rear of his lot in a manner that was either offensive or disturbing to them, but that the operations of Kurz were conducted with such noise and activity that some of them, at least, were unable to sleep. The trial judge summed up the testimony as follows:

‘Immediately after the defendants herein acquired said lot No. 45 in April of 1943 as aforesaid he, (Mr. Kurz) opened up a general automotive repair business in the structure on the rear of said lot. Since that day there have emanated from said structure all the usual noises and traffic that one might reasonably expect from a business of like nature. Specifically, testimony shows that a wrecker is running in and out of said...