Andre v. Donovan

198 Mich. 256 | Mich. | 1917

Brooke, J.

(after stating the facts). The first contention urged by defendant is that the two deeds from Hough and Wilcox to Sprague, dated June 20, 1884, operated as an abandonment of the restrictive covenants contained in the deed from Wilcox to Hough, dated June 14, 1883. Touching these deeds, it is said in argument:

“It is a singular and significant circumstance that, after making their mutual restrictive covenants in definite words, Wilcox and Hough should have omitted to affirm those covenants in making their later deeds to Mrs. Sprague; for it would have been the natural thing to mention them if they intended to perpetuate the covenants. Conversely it was perfectly competent for Wilcox and Hough, by appropriate language in their later deeds, to change or abrogate their former covenants, for they were still the only parties interested in the whole 301-foot strip, and the later deeds are of equal force with the first one.” I

We have examined the restrictive covenants contained in these two deeds with care, and find that in all essentials they agree with those contained in the earlier deed; at all events it is asserted in each deed that the property conveyed “shall be used only for residence purposes.”

It is next urged by defendant that the restrictive covenants, if not abandoned, have been broken by permitting the use of the premises now owned by the defendant for a garage and repair shop and the house formerly standing thereon for a rooming house, no objection having been offered by the plaintiffs nor their predecessors in title. Upon this point defendant cites several cases from foreign jurisdictions. The question has so frequently been passed upon by our own court contrary to the contention of the appellant that we find it unnecessary to go outside this State for authority. Moore v. Curry, 176 Mich. 456 (142 N. W. 839) ; Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726) ; Misch v. Lehman, 178 Mich. 225 (144 N. W. 556); Stewart v. Stark, 181 Mich. 408 (148 N. W. 393); Casterton v. Plotkin, 188 Mich. 333 (154 N. W. 151); Sherrard v. Murphy, 193 Mich. 352 (159 N. W. 524).

The contention of the appellant that the character of the neighborhood has so changed through the encroachment of business as to render enforcement of the restrictive covenants at this time inéquitable will be found treated in several of the cases above cited. Both sides of Cass avenge up to and including the property in question are residential in character; the residences in the immediate neighborhood in many instances being very tostly.

We have no hesitation in reaching a conclusion that to permit the erection of the structure contemplated by the defendant would very seriously injure not only plaintiffs, but others residing near by.

The decree is affirmed, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steers, and Fellows, JJ., concurred.