Spencer v. Childers, 38.

• Decision Date: 29 November 1943
• Docket Number: No. 38.,38.
• Parties: SPENCER et al. v. CHILDERS.
• Court: Michigan Supreme Court

307 Mich. 145

11 N.W.2d 837

SPENCER et al.

v.CHILDERS.

No. 38.

Supreme Court of Michigan.

Nov. 29, 1943.

Suit by Steven and Kate Spencer and others against Morris Childers to enjoin defendant from using a garage as a dwelling. From a decree granting the injunction, defendant appeals.

Affirmed.

Appeal from Circuit Court, Wayne County; Adolph F. Marschner, judge.

Before the Entire Bench.

Wendell Brown, of Detroit, for appellant.

Asher L. Cornelius, of Detroit, for appellees.

BUSHNELL, Justice.

The parties hereto entered into a written stipulation of facts, wherein it is agreed that defendant Morris Childers is the owner of lot 24, on which the building in question is located and which he acquired by warranty deed on December 16, 1939. The recorded deed to this lot from the original subdividers, dated April 28, 1920, contains the following restrictions: ‘No grantee shall erect on any lot from 5 to 55, inclusive, any building other than one private residence and the usual garage or outhouse appurtenant thereto. No grantee's private residence is to cost less than $4,000.00 and said garage or outhouse appurtenant thereto to cost not less than $300.00; one two-family flat for two families only, or one double house for two families only, and the usual garage or outhouse appurtenant thereto, said two-family flat or double house to cost not less than $6,000.00 and said garage or outhouse appurtenant to said two-family flat or double house, to cost not less than $600.00. The location of any grantee's private residence two-family flat or double house shall be as follows: No part or projection of any grantee's private residence, two-family flat or double house shall be located nearer than 25 feet to the front or street line of any grantee's premises, nor nearer than 6 feet to either of the side lines of any grantee's premises.'

On August 10, 1920, the Department of Building and Safety Engineering of the City of Detroit granted a building permit to one John McIntosh for the erection of a one story frame garage, size 27x20, the estimated cost of which was $500. This frame garage was erected on substantially the alley line of lot 24 and remained there from 1920 until the purchase of the property by Childers. During this time it was occupied as living quarters by various people. The plaintiffs, 35 in number, are owners of property on Goldengate avenue, west, between Woodward and Charleston avenues in Grix Home Park Subdivision.

The proofs show that on November 28, 1940, the Department of Building and Safety Engineering issued a permit for the alteration of this structure, with permission to move it forward 5 1/2 feet, and install 12x12 inch masonry piers 3 1/2 feet below grade, the cost of the moving operation to be $140.

Plaintiffs filed their bill of complaint on December 2, 1940, and sought to have defendant permanently enjoined from renting the building, making any repairs or alterations thereon,...