Smith v. First United Presbyterian Church

• Decision Date: 07 April 1952
• Docket Number: No. 52,52
• Citation: 52 N.W.2d 568,333 Mich. 1
• Parties: SMITH et al. v. FIRST UNITED PRESBYTERIAN CHURCH et al.
• Court: Michigan Supreme Court

Page 568

52 N.W.2d 568

333 Mich. 1

SMITH et al. v. FIRST UNITED PRESBYTERIAN CHURCH et al.

No. 52.

Supreme Court of Michigan.

April 7, 1952.

Edward B. Benscoe, Detroit, for plaintiffs and appellees.

Alexander, Cholette, Buchanan, Perkins & Conklin, Detroit, for defendants and appellants.

Howard C. Baldwin, Frank H. Boos, Detroit (Baldwin & Boos, Detroit, of counsel), for amicus curiae, Detroit Council of Churches.

Before the Entire Bench.

BUTZEL, Justice.

In 1913 Edward J. Minock, now deceased, recorded a plat of Edward J. Minock's subdivision of the west 1/2 of the southwest 1/4 of section 14 in Redford township, 1, S R 10 E, Wayne county, Michigan (now in the city of Detroit). The subdivision was bounded on the north by Grand River Avenue, on the south by 12th Street (now Fenkell Avenue), on the west by Evergreen Road, and on the east by the property of others. It contains 62 lots, 11 of which have a frontage varying from 50 to 60 feet on Grand River Avenue, and 51 lots of over an acre each are south of the Grand River lots and fronting on streets that traversed the subdivision.

Lot 53 and lot 54 adjoining it are situated at the southeast corner of Minock and Midland Avenue (formerly Emmett Avenue). Eighty-three feet or thereabouts were later taken off the east end of these two lots to become part of the Outer Drive, a very fine thoroughfare 150 feet in width running through the city of Detroit near its outside boundaries. As a result, lots 53 and 54 also front on Outer Drive. The lots still have a depth of approximately 200 feet and a width of 82 and 132 feet respectively. Some of the other lots in the subdivision were divided into smaller residential lots.

The plat itself contains no restrictions. In all the deeds to the lots given by the subdivider, with very few exceptions, the following restriction was incorporated: 'As a part of the consideration of this deed, it is agreed between the parties hereto that no residence shall be built nearer than 25 feet from the * * * line of the above described lands and shall cost not less than $1,200.00 and that no barn, cess pool or out buildings of any kind or description shall be built or permitted to remain on said lands nearer than 90 feet from said * * * line of the said described lands,' the deeds making reference to the front line of each lot, as same appeared to be either the easterly or the westerly line of each of the lots conveyed.

In 1913 Amos and Denise Gramlich bought these two lots subject to this restriction and deeded the west half of Lot 53 to plaintiffs Monticelli subject to restrictions of record. Defendants, First United Presbyterian Church and its agents, knew of the restriction in the Gramlich deeds when they purchased the easterly half of Lot 53 and all of Lot 54 which together we shall refer to as the proposed church site, but Mrs. Gramlich, survivor of herself and husband, left out the restrictive covenant in deeding to the church. The Monticellis and other property owners brought suit to enjoin the church, its minister and other defendants herein from building a church on the proposed site. After a hearing, plaintiffs were awarded a decree restraining such construction, and defendants appeal.

The lots on Grand River Avenue and Fenkell Avenue are improved with stores and gas stations and are used for non-residential purposes; otherwise, the other lots have been used used exclusively for residential purposes. Very substantial single residences have been built on them with the exception that in the block between Grand River Avenue and Midland Avenue (and not in the block where the proposed church site is situated), one large and one small apartment building have been erected. Plaintiffs Monticelli have a substantial residence which cost them over $13,000. Plaintiffs Smith own a home on Lot 55 adjoining the south side of the proposed church site. There has not been such a change in the neighborhood as to destroy the restriction for residential purposes, assuming that such exists as plaintiffs claim, on all the lots on the side streets. We further find that a residential restriction would still be of benefit to plaintiffs, who may bring suit to enforce it. See Stewart v. Stark, 181 Mich. 408, 148 N.W. 393; Swan v. Mitshkun, 207 Mich. 70, 173 N.W 529: Putnam v. Ernst, 232 Mich. 682, 206 N.W. 527; Sullivan v. Playfair Realty Co., 238 Mich. 274, 213 N.W. 973; Voorheis v. Powell, 261 Mich. 378, 246 N.W. 154, 85 A.L.R. 932; Indian Village Association v. Barton, 312 Mich. 541, 20 N.W.2d 304.

To simplify the issues in this suit, we hold that a church is not a nuisance per se. Plaintiffs disavow any such claim. They do assert that the church would destroy the residential character of their homes, attract large crowds, create parking problems, noises and interfere with their privacy, et cetera. The trial court properly took testimony to determine wheter the enforcement of the restriction would be of value to plaintiffs.

The church is to be built in three units. The walls of one of them would be built along two sides of the Monticellis' property and also along one side of the Smith property.

The building of a church would violate a covenant either express or by reason of a reciprocal negative easement forbidding any building except for residential purposes, assuming such to exist here. In Voorheis v. Powell, supra, we quoted from Evangelical Luthern Church v. Sahlem, 254 N.Y. 161, 172 N.E. 455, as follows: 'Here, in the case at hand, no process of balancing the equities can make the plaintiff's the greater whem compared with the defendant's, or even place the two in equipoise. The defendant, the owner, has done nothing but insist upon adherence to a covenant which is now as valid and binding as at the hour of its making. His neighbors are willing to modify the restriction anf forego a portion of their rights. He refuses to go with them. Rightly or wrongly he believes that the comfort of his dwelling will be imperiled by the change, and so he chooses to abide by the covenant as framed. The choice is for him only. Neither at law nor in equity is it written that a license has been granted to religious corporations, by reason of the high purpose of their being, to set covenants at naught. Indeed, if in such matters there can be degrees of obligation, one would suppose that a more sensitive adherence to the demands of plighted faith might be expected of them than would be looked for of the world at large. Other owners may consent. One owner, the defendant, satisfied with the existing state of things, refuses to disturb it. He will be protected in his refusal by all the power of the law.' [261 Mich. 378, 246 N.W. 156.] Also see Boston-Edison Association v. Temple of Light, 310 Mich. 48, 16 N.W.2d 662.

Daniel Minock and Edward Minock, his brother, both inherited property from their father. Daniel inherited the parcel adjoining Edward's. It is now known as the Evergreen Subdivision. Daniel in subdividing his parcel in 1916 restricted the lots, except those on Grand River Avenue, to single private dwellings. The plats for the two subdivisions came from the same law offices. In the opinion of the trial court, some stress was placed on this circumstance, and it was argued that both brothers must have intended the same restriction. This does not follow. It is non sequitur.

In view of our decision we need not consider whether the building of the church in the manner proposed will violate the zoning laws or building regulations of the city of Detroit. Defendants state that they will be bound by them and will conform with them if they are permitted to build the church.

It has also been generally true that covenants not restricting properties to residence or dwellings may be regarded as permitting the use of the restricted property for church purposes. Roberts v. Congregation Shaarey Zedek, 242 Mich. 381, 218 N.W. 662; Kelly v. Carpenter, 245 Mich. 406, 222 N.W.2d 714; 12 A.L.R.2d 1242. Defendants relied heavily upon the Roberts and Kelly cases in their arguments. They ignored the fact, however, that the restrictions in those cases pertained to 'buildings' and could not be interpreted to mean 'residences,' particularly in view of the fact that no uniform residential area had developed. These cases, therefore, are in no way controlling here.

The restrictive covenant itself does not expressly forbid any particular kind of use of the property, only sets out requirements for the erection of residences should they be built. Does this affirmative requirement amount, in effect, to a negative requirement that none other than residences be built? As the restriction is poorly worded, it is open to construction to ascertain the intent of the subdivider; in this case, more particularly, whether or not he had a general plan of restriction for the subdivision which involved its restriction to single residential use only. To the effect that ambiguous restrictions may be interpreted in the light of a general plan, see Library Neighborhood Association v. Goosen, 229 Mich. 89, 201 N.W. 219; Signaigo v. Begun, 234 Mich. 246, 207 N.W. 799; Bunce v. Jones, 238 Mich. 337, 213 N.W. 225; Holderness v. Central States Finance Corp., 241 Mich. 604, 217 N.W. 764; Brown v. Hojnacki, 270 Mich. 557, 259 N.W. 152, 97 A.L.R. 621; West Bloomfield Co. v. Haddock, 326 Mich. 601, 40 N.W.2d 738; Ardmore Association v. Bankle, 329 Mich. 573, 46 N.W.2d 378.

It will serve no useful purpose to review all of the many building restriction cases which have come before this court. No two are alike, and, in the main, must stand on their own facts. No hard and fast rules appear for our guidance. Putnam v. Ernst, supra; Hamburger v. Kramp, 268 Mich., 611, 256 N.W. 566.

Counsel have discussed a number of cases in which we had to determine the nature of a general building plan, but in which there was no question as to the import of the restriction involved, only the problem as to whether...