294 N.W. 163 | Mich. | 1940
This is a bill in equity to enforce a claimed "reciprocal negative easement" under the principles of Sanborn v. McLean,
"Subject to the following incumbrances and restrictions:
"1. This lot is restricted to residence purposes. Any dwelling erected hereon shall cost at least $3,000, and shall stand at least 20 feet back of the front lot line."
In 1929, he conveyed lot 28 by deed containing substantially the same language, except that the minimum cost was to be $2,000. However, many other deeds were executed by him without any reference at all to restrictions; some, however, were expressly stated to be subject to "building restrictions of record," "restrictions of record," or "restrictions which run with the land." Obviously, there were no building restrictions of record. About 21 lots of the subdivision are vacant. On lot 1 stands a building originally constructed as a dwelling house, but it has been converted into the offices of an attorney and a firm of builders and real estate operators. On lots 7 and 8 a dwelling house on the front part of the lots has been converted into offices for real estate and building operators; on the rear portion of these lots is a garage operated as a general automobile repair business. On lots 13 and 14 a house has been converted into a combination coal, ice, wood and landscaping business. On the rear portion of lot 20 stands a large frame garage which is used in the operation of an electrical business. The balance of the improved lots is used for private residence purposes. Defendant Eliza De Roo contemplates building a one-story building in which is to be operated a grocery and meat business; defendant Modest De Roo is the builder of the proposed structure. It is conceded that there are no express restrictions in the plat or in the deeds which form the chain of title to defendant Eliza De Roo. The trial court granted the relief prayed on the ground that *227 the express restrictions in the deeds to lots 28 and 55, and the references to restrictions "of record" or which "run with the land" in other deeds subjected lots 50 and 51 to a reciprocal negative easement. In reaching this result the trial court expressly disbelieved the uncontradicted testimony of Cooper and George Ruehle that there was no general plan or scheme of restrictions when the lots were conveyed, and that any restrictions in the deeds to lots 28 and 55 or references to restrictions in the other deeds were inadvertently inserted by the typist in Cooper's office who copied the wording of deeds in another subdivision.
We shall assume, as the trial court found, that lots 28 and 55 were deliberately restricted, and that the reference to restrictions in some of the other deeds may not now be explained as being the result of mistake (see Harvey v. Rubin,
The principles applicable to the rule of "reciprocal negative easement" were classically stated by Mr. Justice WIEST inSanborn v. McLean, supra:
"If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold. For want of a better descriptive term this is styled a reciprocal negative easement. It runs with the land sold by virtue of express fastening and abides with the land retained until loosened by expiration of its period of service or by events working its destruction. It is not personal to owners but operative upon use of the land by any owner having actual or constructive notice thereof. It is an easement passing its benefits *228 and carrying its obligations to all purchasers of land subject to its affirmative or negative mandates. It originates for mutual benefit and exists with vigor sufficient to work its ends. It must start with a common owner. Reciprocal negative easements are never retroactive; the very nature of their origin forbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring land sold by a common owner. Such a scheme of restrictions must start with a common owner; it cannot arise and fasten upon one lot by reason of other lot owners conforming to a general plan."
The burden of establishing the restrictions by way of reciprocal negative easement is on plaintiffs. Fenwick v.Leonard,
"Courts of equity do not aid one man to restrict another in the use to which he may put his property unless the right to such aid is clear." Casterton v. Plotkin,
It has been said that only under unusual circumstances will the use of property be restricted other than by provisions in the conveyance on which the title rests. Miller v. Ettinger,
"One of the best evidences that it was intended to be a restricted district is the fact that the restrictions have been observed and nothing but dwellings erected."
The stipulation is indicative of the contrary. While none of the lots partitioned to Cooper H. Ruehle has been used for business purposes, the scattered array of his holdings leads to the conclusion that any neighborhood plan or scheme would have been impossible without the binding cooperation by way of express restrictions from the other owners in the subdivision. Lots 50 and 51 front on Berkshire road. The two lots immediately to the east and the two lots to the south, which were among those deeded to George at the time of the partition, were never restricted, nor were any others deeded to him or thereafter sold by him. Defendants could not enforce restrictions as to the lots immediately to the east or south of lots 50 and 51. An attorney, after finding no restrictions in the *230 chain of title, but who might possibly suspect there were reciprocal negative easements, were he to examine the title to these adjoining lots or to almost all of the 74 lots in the entire subdivision, would come to the conclusion that there were none, and that there was no common owner. If he still had any doubts the business purposes for which certain lots were being used would confirm his opinion. There were no restrictions nor negative easements from a common owner of the adjoining lots.
A decree may be entered dismissing the bill. Costs to defendants.
BUSHNELL, C.J., and SHARPE, CHANDLER, NORTH, McALLISTER, and WIEST, JJ., concurred. The late Justice POTTER took no part in this decision.