Webb v. Smith, 150425

Decision Date18 April 1994
Docket NumberNo. 150425,150425
Citation204 Mich.App. 564,516 N.W.2d 124
PartiesDonald W. WEBB, Arlene S. Webb, Plaintiffs-Appellants, and Keith Thurlow, Plaintiff, v. Warren R. SMITH and Faye C. Myhra Smith, Defendants-Appellees (After Remand).
CourtCourt of Appeal of Michigan — District of US

Lambert, Leser, Dahm, Cook, Schmidt & Giunta, P.C. by Peter F. Dahm, Bay City, for plaintiffs.

Currie & Kendall, P.C. by Daniel J. Cline and Jeffrey N. Dyer, Midland, for defendants.

Before TAYLOR, P.J., and REILLY and TALBOT, * JJ.

TALBOT, Judge.

Plaintiffs appeal a March 2, 1992, Midland Circuit Court judgment entered in favor of defendants involving a dispute over application of a negative reciprocal easement to defendants' newly constructed home in the Thomas Shores Subdivision. This is the second time the parties have been before this Court with respect to the property at issue. See Webb v. Smith, unpublished opinion per curiam of the Court of Appeals, decided May 8, 1991 (Docket No. 117920). We reverse and remand to the trial court, where it shall impose the appropriate remedy.

The relevant facts concerning this appeal are essentially undisputed. By warranty deed, defendants acquired a piece of property described as the "Westerly Half ( 1/2) of Lot 6" of the Thomas Shores Subdivision. When defendants began to construct a home on the property, plaintiff Keith Thurlow objected because the house would block his view of the lake around which a number of the homes were situated. 1 Thurlow claimed that the home was designed in violation of the twenty-foot setback restriction and the one-home-per-lot restriction appearing in the deeds for lots in the subdivision. At the time Thurlow first voiced his objection to the construction, the township had already issued a permit and the foundation of the home was complete. When Thurlow's attempts to prevent further building through the township failed, Thurlow and the Webbs (owners of lot 7 in the subdivision) filed a complaint for injunctive relief.

A bench trial was conducted and the court granted judgment in favor of defendants because it determined that defendants did not have actual or constructive notice of the restrictions and that there was no reciprocal negative easement preventing defendants from pursuing their building plans. This Court disagreed and concluded that defendants had constructive notice of the restrictions. See Webb, supra at 2. This Court reversed and remanded to the trial court for a determination whether defendants' home was in violation of the restrictions. On the basis of the testimony presented at the prior bench trial and the arguments of counsel, the court concluded that the home did not violate either of the restrictions and, once again, entered a judgment in favor of defendants.

On appeal, plaintiffs argue that the trial court erred in finding that defendants' home was in compliance with the restrictions. We agree.

The restriction at issue states as follows:

No building or dwelling shall be placed closer than 20 feet from the front lot line, and not more than one building shall be used for dwelling purposes on each lot. [Emphasis added.]

At issue on remand was the interpretation of "front lot line," and "lot." The court found that the term "front lot line" referred to the shore of the lake as opposed to the subdivision plat line (survey line) and that the term "lot" referred to any parcel conveyed by the developer. On the basis of these interpretations, the court concluded that defendants' home was in conformity with the restrictions.

When reviewing equitable actions, this Court employs review de novo of the decision and review for clear error of the findings of fact in support of the equitable decision rendered. Attorney General v. Lake States Wood Preserving, Inc., 199 Mich.App. 149, 155, 501 N.W.2d 213 (1993); Badon v. General Motors Corp., 188 Mich.App. 430, 438, 470 N.W.2d 436 (1991). A trial court's findings are considered clearly erroneous where we are left with a definite and firm conviction that a mistake has been made. Lake States, supra 199 Mich.App. at 159, 501 N.W.2d 213.

In this case, we are left with a definite and firm conviction that the trial court made a mistake with respect to its interpretation of the front lot line requirement. Plaintiffs claimed that the front lot line requirement meant that no home could be set back less than twenty feet from the survey line. Conversely, defendants advocated that the term meant that no home could be less than twenty feet from the edge of the water. Were plaintiffs' interpretation to be correct, defendants' dwelling would be in violation of the minimum setback requirement.

At the original bench trial, Leonard Thomas, the developer, testified that the survey line was the appropriate point of reference with respect to the front lot line and that he believed defendants' home was constructed in violation of that restriction. Thomas further testified that the reason for the restriction was that each lot owner would have an unobstructed view of the lake. Thomas disputed that the setback reference should be to the water line because that line fluctuated with the weather. Testimony from at least one other witness revealed that he was required to modify his building plans because they were in violation of the setback requirement.

The majority of remaining testimony related to the issue of notice and the manner in which this dispute developed. At the conclusion of the trial, the court found that Thomas' testimony was suspect because it was contradictory. Specifically, the court relied upon a portion of Thomas' testimony where he stated that the owners could set back any place they wanted to setback. However, our review of the testimony in the context in which it was given indicates that the court made a mistake in discrediting Thomas. The relevant testimonial exchange between plaintiff's counsel and Thomas was as follows:

Q: And you hoped by setting a setback, that complying with that setback you would generally have everybody in a line down the shore?

A: Yup, unless they preferred to set back further.

Q: They could set back further?

A: They could set back anyplace they wanted to.

Q: Do you know if anybody has set back further?

A: Oh, definitely so, myself for one, a whole bunch back.

Considered in its context, this testimony is not contradictory to Thomas' testimony that the setback requirement was in reference to the survey line.

While it is true that Thomas sometimes referred to the water's edge as the point from which the setback was to be measured, the overall thrust of his testimony was that the line had to be stable and that the survey line was the proper point of reference. Although the plat description contains language indicating that the plat covers all land to the water's edge, that language is not tantamount to conveying language, does not appear in the deeds or the text of the restriction, and is merely a general description of the area surrounding the subdivision.

In interpreting a restrictive covenant, our Supreme Court stated that the covenant should be

"construed in connection with the surrounding circumstances, which the parties are supposed to have had in mind at the time they made it, the location and character of the entire tract of land, the purpose of the restriction, whether it was for the sole benefit of the grantor or for the benefit of the grantee and subsequent purchasers, and whether it was in pursuance of a general building plan for the development and improvement of the property." [Brown v. Hojnacki, 270 Mich. 557, 560-561, 259 N.W. 152 (1935), quoting Library Neighborhood Ass'n v. Goosen, 229 Mich. 89, 201 N.W. 219 (1924).]

Inasmuch as the clear and uncontradicted intent of the drafter was to...

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