98 Mich. 110 | Mich. | 1893
This is a bill to enjoin the sale of intoxicating liquors upon premises in the village of Sand Beach,
“ This conveyance and estáte in the said premises hereby created is subject to the express condition that if the said party of the second part, their heirs or assigns, shall at any time sell or keep for sale, or knowingly permit any person under them so to sell or keep for sale, any spirituous or intoxicating liquors, whether distilled or fermented, the entire title and estate in and to said premises hereby conveyed and created shall cease, and the title in and to» said premises shall thereupon at once revert to and vest in the parties of the first part, their heirs and assigns, forever, and it shall then be lawful for the said parties of the first part, their heirs or assigns, to re-enter upon said premises, and said party of the second part, their heirs or assigns, and ■every person claiming under him or them, wholly to remove, expel, or put out.”
Prior to the date of the deed in question, complainant had conveyed several parcels of land in the village to other parties without restriction. The last of these deeds was •dated May 20, 1883. It also appears that on January 24, 1885, complainant conveyed a parcel of land adjoining the premises in question to ■ one Lowry by deed without restriction, and that Lowry, from 1888 and down to the time of the hearing, has kept a liquor saloon upon the premises so •conveyed. Defendant Frank Pawlowski operated a meat market on his premises until August, 1891, since which time his son has kept a saloon therein. Until years after the establishment of the Lowry saloon, defendant had •observed the conditions of his deed.
Restrictions of this class are sustained upon the theory ■that a party has the right, in disposing of his property, to prevent such a use by the grantee as might diminish the value of remaining land, or impair its eligibility for other uses. Watrous v. Allen, 57 Mich. 362; Smith v. Barrie, 56 Id. 314. But is there no mutuality in such agreements? It certainly cannot be said that a grantor has the right
It “is no answer to say that the omission of. the restriction in the deed to Lowry was a mistake. The consequences are the same to defendants. No proceedings have been taken to correct such mistake.
The decree below must be reversed, and the bill dismissed.