223 Mich. 378 | Mich. | 1923
This is an injunction bill to restrain a threatened violation of building restrictions. Plaintiffs are owners of high-grade single dwelling houses on Carter avenue, in the block between Lawton and Wildemere avenues, city of Detroit. Their lots and defendant’s lots are' in the Wm. L. Holmes Subdivision. The plat of this subdivision laid out 376 lots for residence purposes on Carter, Gladstone and Hazelwood avenues. All lots in the subdivision are subject to the following restrictions:
“Provided always and these presents are upon this express condition that said second party, his heirs and assigns * * * shall neither erect nor suffer to be erected thereon any buildings except such as are to be used exclusively for residence purposes and neither to place nor erect nor suffer to be placed or erected thereon any dwelling house of less than two stories in height or costing less than $1,500.00, and that no part of any building on said piece or parcel of land shall be placed within fifteen feet of the street line at the front thereof.”
In June, 1922, defendant purchased three lots at the southeast corner of Carter and Wildemere avenues, subject to such building restrictions, took advice of an attorney as to his rights, and at the time the bill was filed had excavated for the foundation of a three-story 24 apartment house on the three lots, with the front of the excavation 15 feet from the street lot line. In the block are 50 lots. Upon 40 lots are two-story single dwelling houses, standing 25 feet back from the street line with porches in front thereof. On the northwest corner of Carter and Lawton avenues there is a four-family apartment standing
Defendant contends that the restrictions do not prevent a dwelling house from occupying more than one lot; that an apartment house is a building “used exclusively for residence purposes,” and is, therefore, a. “dwelling house” within the terms of the restrictions; that the general plan of improvement with reference to location of buildings on lots, was not established by the evidence, and that the right to insist upon the restrictions has been lost by permitting the four-family apartment to be erected in the block and apartment houses and flats to be erected on other streets, within the restricted area.
The decree entered in the circuit enjoined defendant.
“from erecting upon any one of said lots anything except a single dwelling house to be used for a single family, said single dwelling house to be erected on the lots above mentioned, with its front line not nearer than 25 feet from the front line thereof, that said defendant, Heyman Barak, be restrained from using more than one lot for a single building.”
The case is here on appeal by defendant. All rights of ownership run with title in fee to land except as expressly restricted, either in an immediate conveyance or in the chain of title. Restrictions upon otherwise lawful use must be explicit in terms. Doubts, if any, arising in construing restrictive provisions will not be solved in favor of limited use of the property. Casterton v. Plotkin, 188 Mich. 333;
The restrictions clearly limit the erection of buildings to “such as are to be used exclusively for residence purposes,” and defines such buildings as dwelling houses, not less than two stories in height and costing not less than $1,500. Had the restrictive provisions stopped with limiting the erection of buildings to “such as are to be used exclusively for residence purposes,” an apartment house would not offend. Casterton v. Plotkin, supra; Teagan v. Keywell, supra. The restrictions, however, do not stop there, but go on to fix the character of such residence buildings, as dwelling houses of not less than two stories in height and costing not less than $1,500. This clearly discloses the purpose to provide a district where lots would have single dwelling houses, and, therefore, an apartment does offend. Bagnall v. Young, 151 Mich. 69; Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Kingston v. Busch, 176 Mich. 566; Rosensweig v. Rose, 201 Mich. 681.
The restrictions bar the proposed apartment house. This renders it unnecessary to determine whether the proposed apartment building, or any dwelling house, must be erected 25 feet back from the street line, or more than one lot may be used for a single dwelling house.
Has there been a waiver of the restrictions? Failure to prevent the erection of the four-family apartment and the semi-bungalow, at the east end of the block, has not abrogated the restrictions nor deprived plaintiffs of the right to prevent further and nearer violations and greater damage to their properties. The evidence discloses that the block in question retains, almost in its entirety, the character intended
Violations in other blocks and on other streets did not require plaintiffs to run to court to prevent them or, for failure to do so, remain supine when other and nearer violations of the restrictions threatened them with direct financial injury.
The questions of location of dwelling houses, with reference to the street or front lot lines, and whether more than one lot may be used for a single dwelling house are moot on this record and, therefore, not decided. With these exceptions the decree entered in the circuit is affirmed, with costs to plaintiffs.
