*1 Reports. Michigan tOci CO. KIRBY LAND v. MEYERING Injunction—Breach 1. of Covenant —Construction Easements — of Deed. enjoin Right purchaser of on lot erection of clubhouse certain by lots, pur- lake front of all lot reserved owers for benefit wholly chasers, infringement easement, on rests terms deed, early promises expressions of intention not incorporated not in deed. Same —Easement Mat as Different 2. Granted Not Construed
Easement. granted reads, must be as it Deed construed and easement construed, not be to create another or different ease- grantees. for ment benefit of 3. Same — Grant passing lot owners, Right Way. deed to to and from lake and not include other use. is grant way lot ’ ’ purchaser river, “perpetual passage common over with all [*] * * said tract, other Injunction. 4. Same — purchaser granted right way passage over Lot certain lots purchasers for lot reserved benefit of all entitled en- join lots, erection of clubhouse on said where his for full width his lot is not thereby, to lake obstructed clubhouse is for benefit of all lot owners. Potter, J., dissenting. Oakland; from
Appeal Gillespie (Glenn 0.), J. 1932. April 20, (Docket Submitted No. 172, Calen- dar No. Decided October 36,025.)
Bill Kirby William E. and another against Land Meyering Company, Michigan corporation, enjoin trespass others on real estate. Bill appeal. dismissed. Plaintiffs Affirmed. Hartriclc, B. George plaintiffs. *2 L. Moore,
Andreiv for defendants. 1929, September 20, (dissenting). J. Potter, defend- filed their bill of complaint against plaintiffs remove and trespass, permanent ants to restrain a temporary buildings trespass, constitute alleged and defendants, for relief. Prom a decree for other appeal. July 23,1923, plaintiffs applied 44 Beachland subdivision in the Lot No. purchase county, Oakland Bloomfield, of West township Michigan. Kirby bought E. 20,1924, plaintiff
March William trustee, on contract: Welch, of Fred S. subdivision, 44 Beachland according
“Lot in thereof as recorded of deeds’ plat register Also the county, Michigan: per- office for Oakland and 106 of said petual 13, 31, 32, 33, 34, use lots with the Beachland in common owners subdivision all the other lots in said and occupants subdivi- Sylvan in to and from lake passing lake, sion Cass river; 24, 25, 27, 28, 29, 30, and also lots 26, Clinton 34, 35, 36, 39 and No. 38 sub- 31, 32, 33, 37, 40, also in deed recorded in jected to the restrictions .liber 355, $1,800.” 65. For the sum of page Land 26, 1928, Company November Detroit, corporation, deeded to plaintiff William Kirby, E. and Ethel M. his the follow- wife, ing:
“Lot number 44 of Beachland accord- subdivision, in ing to a thereof as recorded of deed’s plat register 22 county, Michigan, office Oakland liber plats 3; perpetual also the of 35, page 13, 31, lots 32, 33, 34, 106, 24, 26, 27, 29, 30, 36, 37, 38, 25, 28, 39 in common with the and occupants owners Michigan Reports. passing of all the other lots said subdivision Sylvan
and from lake, Cass lake and Clinton river. “Subject, following building however, . other restrictions and which attach to and run with the land: “ (1) Upon all lots of said Beachland subdivision Sylvan running to lake and lake, river, Cass Clinton except part building, lots no within 40 located thereon shall be feet the water’s edge shall be within said lot. upon any building all other no lots feet of the street line front of “ buildings (2) All 41- erected located on lots shall face Cass lake drive. 52, inclusive, “(3) buildings All erected and located on lots both 53-93, inclusive, shall face Beachland *3 boulevard. “ (4) buildings All erected or located on 94- lots upon Sylvan both inclusive, shall face avenue.
“(5) buildings All 1- erected or located on lots 40, inclusive, shall face Cass lake or Clinton may river the case be. as “(6) buildings All erected or face on lots located upon Sylvan, 100-121, lake. inclusive, shall “(7) any No fence be shall constructed on lot comply fully the same unless each and all of the specifications: “ (a) height It shall not be more than 36 inches ground; above the “ (b) composed It shall be of either wooden lat- tice work or structural ornamental metal; “(c) kept good repair It at shall be all times properly painted. and “ (8) building No more than one shall be erected any any building on lot, nor shall thereon, erected any part of which shall be within 10 feet of the side- line of the lot on which the same is located. Boat- (build- houses shall be deemed to be within the term ing). garages All must be erected as a of or immediately adjoining No old the house on the lot. any any building nor shall lot, shall be moved onto dwelling any cottage on lot whose cost or be erected any store or other $2,500, shall be less than nor shall place business, for the transaction of salesrooms, excepting be erected or maintained lot those sub- the owner of the lots which be reserved purposes. division for business “(9) to, rented or occu- shall be sold, No lots Negro pied by any persons of descent.” Jewish by plaintiffs purchased acquired and
The lot pursuance which drive, lake of this deed faces Cass plaintiffs’ 44 and lot and between wide, 50 feet 36 and 37 de- lots lie lots 36 and On lake Cass long signboard and 50.7 feet have erected a fendants top 12 feet inches of which is wide, 10 feet ground. lake back from Cass This sets above the approximately have also 60 feet. Defendants drive designated what is Cass- to be erected caused building Sylvan Beach a frame Clubhouse, Lakes long approximately in width. and 35 feet 76.3 feet approxi- building 32, 33, on lots stands This mately drive and be- 80 feet back from Cass Lake lake. East south tween that Cass pump 20 x which stands feet, is a house clubhouse main- claim the erection and on lot 34. Plaintiffs signboard, above and this described, tenance of the pump trespass upon clubhouse and house constitutes property rights on which stand, their *4 complaint to abate them. file bill of this upon rights depend their deed. Plaintiffs’ No principle sacred than that is more a man shall be compelled perform to his contract. Leech v. Schwed- App. George 9 463. Said Sir er, Ch. Cas. Jessel: clearly by authority “It established that there is justify interfering to if is sufficient court there Michigan Reports. 260 160 of the covenant. It -is has been breach plaintiffs, court, but the to estimate the amount injury upon damage that arises from the inflicted them. The moment the court finds that there has injury, been a breach of covenant, that is an right the court has no to measure and no to it, plaintiff specific performance refuse of his supra, contract.” Leech Schweder, v. 468, note. “If the of the instrument clear dam- construction question then it not a clear, the breach age, mere but the circumstance of the breach of ground covenant affords sufficient for the court to by injunction.” Tipping Eckersley, interfere 2 Kay (69 Eng. Repr. 779). & Johns. my opinion, “It is therefore, matter of no plaintiffs given moment case, this that the have * * *! damage no evidence of actual done them. Having established that the acts of the defendants are a violation the contract entered into between plaintiffs, them and the and a violation of the act parliament passed carry such contract into ef fect, the are entitled to call court protect enjoyment them in the of that which purchase#, have so and this court is bound to preserve being upon.” it from broken Dickenson v. The Co., Grand Junction Canal Beav. 260, (51 Eng. Repr. 538). opinion plaintiff, “I am he because complained has not of certain of covenant, breaches my opinion, injury which, have inflicted no thereby him, has not debarred from com- himself plaining of a breach which does affect the value of property.” Eq. his MacDermot, Western v. L. R. Cas. suggested “It has been that there such has been acquiescence plaintiff an as entire-
ly right. during I bars his But, observed *5 Meyering argument, in that the order the defendant should the contention, succeed burden of which, course, him, rests he must show such a course of acquiescence preclude plaintiff as forever to the insisting right agreement.” from on his under the Evans v. L. Davis, R. 10 Ch. Div. grant passage
The is not a mere limited limited and defined the court as in ordi- nary grant perpetual easement cases. It ais of a grant —a of an interest in title in common with occupants the owners and of all the other in the lots passing subdivision lots named—in to Cass Sylvan lake, lake and river. If a mere Clinton lake, easement to reach the waters of Cass Sylvan intended, river was lake and Clinton necessary name the 19 dif- not have been would An in the deed. examination ferent lots mentioned therein, the restrictions contained of the deed, building ap- were lots named which plied, restrictions platted, the character of the as then through representations their made owners selling agents as to what was to be done advertising land, matter with issued approval property, owners of the the circular reading, frontage “Private Park —Cass lake re- provisions served for use of lot owners,” of the deed that the above nine restrictions and conditions only binding parties are not on the but thereto, are by any made for the benefit of and be enforced of the owners land in the. said indi- subdivision, originally specified cate that it was intended the lots upon. correspondence were not to be built Company, the defendant Land which ac- quired property, indicates it understood the purchasers of the lots had which could violating infringe upon. not, without their contracts, Reports. Michigan *6 July Company plain Meyering Land 12, 1925, sent conveyance Kirby tiff E. a letter of to be exe W. cuted which recited that: operation
“In order to release from and effect portion that of the restrictions and conditions con purchase tained in contract for the the under * # * signed strictions of lot Beachland subdivision such re pertaining perpetual to the use in common * * * with other lot owners said subdivision of lots consideration of the sum of one dollar and other receipt hereby considerations, whereof is ac knowledged, undersigned presents these grant, bargain, remise and sell, release and forever quitclaim Meyering Company unto the Land or to assigns, pieces parcels its all those of land situ county Michigan, ate and more the said of Oakland, State of particularly described as lots.” July it 21, 1925, wrote to him it intended to build improve representing: clubhouse and these lots, your will in
“This no detract from lot but it very materially.” should increase its value August 1, 1925, it wrote him that June 12th, you regarding plans wrote “We our for the de- velopment of a tract of land in our Beachland sub- requested division. We inclosed a release which we you sign gave and return to us which us the privilege improve property according to the ’’ plans which we mentioned in this letter. 29, October 1925, and November 5, 1925, it wrote him about his club which it had erected land where it July knew it had no business to erect it. him: 1926, wrote (was) necessary “It to secure from various for- purchasers
mer of Beachland subdivision a release ’’ of their interest in the question. lots in Meyering July a release under date of inclosed, It which, by plaintiffs contained the lan- for execution guage : “In consideration of the of one sum dollar receipt other valuable whereof consideration, hereby
hereby acknowledged, undersigned, re- I, the quitclaim Company lease and Land pertaining to the use in common all interest 24 No. 40 in and lots No. other lot owners any part subdivision, of Beachland Oak- thereof, county, plat Michigan, according thereof county Oakland records.” as recorded said *7 right not this, if had were If defendants plan pursuance property con- of a which the sold private park templated to to be were be a these lots they by not the would owners, in common all lot used correspond- to had taken the trouble have many requests quitclaim deeds. made the for ence or necessary plaintiffs quitclaim for to what It was plaintiffs they not own. Defendants understood did necessary to which it was secure, had substantially pro- what seek to are these tect. Paige’s (24 (N. Y.) Miller,
In Hills v. Ch. 218), plaintiff purchased facing Dec. a lot a tri- Am. agreed piece angular which be of land it was should Subsequently public property. triangular piece the quitclaimed the to trustees of church who sought it. in- to Plaintiffs an threatened build (p. 256): junction. The chancellor said privilege to those an or annexed “It was easement reconveyed if had the whole of he lands; right his recover a breach of Bostwick, to land bond would have become extinct. the condition Principles (3 Commentaries, Kent’s Erskine’s 227.) thus Scotland, of the Law Michigan Reports. granted was the servitude luminibus non officiendi prospectui vel of the Roman or the of the law, appurtenant owner of the lands to which it is re- strain mak- the owner the servient tenement from ing any may injure light erection thereon which prospect any part or of the dominant tenement, Rights- description, thereof. of this denominated predial servitudes in law, the civil law our termed easements, are attached estate, person not to the of the owner dominant tene- they ;ment and follow that estate into the hands assignee So, thereof. the other hand, are charge property estate of the servient any person tenement, and follow it into the hands of any part to whom such tenement or thereof is sub- sequently conveyed.” Hayes Eq. In 51 N. Co., Railroad J. it is. held that contracts like will en here involved be forced whether denominated covenants, conditions, exceptions, reservations, or restrictions, whether running question (p. with the land not. The 349): “Not whether the but land, covenant runs with the party permitted
whether a shall ’’ a manner inconsistent the contract. pointed Beasley As out Chief Justice Brewer *8 (19 (97 v. Eq.) 4 Marshall, E.C. Gr. N. J. 679): Am. Dec. upon “It will be found, examination, these proceed upon principle preventing decisions of a party having knowledge just rights of another, of defeating rights, upon
from
such
the idea
engagements
that the
enforced create
easements
’’
are of a nature to run with the land.
It is claimed
knew defendants had vio-
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purchase
terms
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when
v.
knowledge
having
they accepted
deed, and,
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ac
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were
complain.
cepted
heard to
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their
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enants
regarded
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It
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is as
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pur
in title. The
incumbrances or defects
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upon to exercise
but
chaser is not called
rely upon
of the deed.
a
the covenants
has
purchaser
notice of an incumbrance
That a
has
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frequently
taking
reason for
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scope
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in
which the
is
within
(10 R.
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injunction
to an
is entitled
laid out and established
private buildings
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Taylor,
315);
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38 Mo.
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(Wheeler
v.
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of it
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ficial to enjoyment pro- square, public of them will by injunction.” Joyce from encroachments tected Injunctions, § 1024. *9 Reports. Michigan Jurisprudence, Equity “Story in Ms work on injunctions describing § will the cases where things says: privi- granted, among be other ‘Where yet private public leges of a nature and beneficial contiguous proprietors are estates, public squares, secured public places or other dedicated enjoyment protected the due of them will be uses, ” by injunction.’ against encroachments Wheeler supra. v. Bedford, “Every enjoyment man of his has property pro- another, undisturbed and to be may enjoyment; tected in and, that what one con- very highly. value, sider little another esteem governed The court will not, kind, cases be inquire alone, dollars cents but will whether injury reasonably such a nature can supposed materially enjoyment to lessen ’’ property by its owner. White v. Forbes, Walk. Ch. (Mich.) 112. property property. is resort prop-
Beachland subdivision laid out as resort erty contiguous to Cass lake. ponds “These lakes and are scattered over almost parts they impart landscape all State; of the to picturesque scenery;
the charm of their banks are often selected as favorite sites for residence, high price; command a these considerations entered original purchase into the government, from the every subsequent purchase. many Much, and in cases most, value of these locations, and of the beauty residences them, consists in the of the prospect which the lakes afford.” Rice Ruddi man, Mich. 125.
In cases like that involved here, great weight “The supports of the authorities delay doctrine that in such acquies- case mere *10 Metering v. remedy, has con it unless defeat the will not cence Long long the itself.” to defeat so as tinued 182 Mich. 415. Stedman, v. ton expense defendants the not balance We rights. against plaintiffs’ the violation of great expense the would be it “The fact that injury complain compared with defendants ants, appear noof conse and is therefore, not in the deeds quence, The restrictions if were true. damages com The amount of have been violated. wholly plainants immaterial. Such suffered is Longton Stedman, bewill enforced.” restrictions supra, 414. remedy compelled plaintiff seek in an Nor is at law. action by complainants’ “The violation obstructing permanent an structure erection of easement and by created deed will be ’’ Long by injunction equity. in a court
relieved supra, Stedman, ton v. prop- contract, deeded the made the
Defendants money accepted erty, then therefor; violated infringed upon rights conveyed, contract, deliberately breached the and deed. Their acts were covenants their own
high-handed, illegal, and void against plaintiffs’ rights. re- Decree should be plaintiffs. versed, and decree costs, entered expressions Fead, J. The claimed owner’s in- promises representations, tention, that the lake improved park, front lots would be as a that no buildings plaintiffs’ be erected would them, view of the lake would be unobstructed and their quiet peaceful, summer home undisturbed revelry parking of a clubhouse nocturnal and the many plaintiffs they bought, made to when cars, [Oot. Michigan Reports. incorporated
were October, 1925, in the deed. In they knew had been breached the com- pletion They rescind, the clubhouse. did not objection. They paid claim fraud, nor make ance of the bal- purchase price, during about two-thirds, years, in 1928. the next three and obtained a deed Controversy regarding the form of the deed by plaintiffs obtaining de- settled kind early request prom- manded. No was made that the incorporated in ises be it. This is not a for ref- suit *11 right ormation nor rescission. Plaintiffs’ to relief wholly upon the rests terms of not all deed, at ' early promises. The deed be construed it must as reads. The ease- granted by ment it cannot create another or different plaintiffs. easement for the benefit 9 R. L.C. pp. 784, 785. expressly prohibit buildings
The deed not does contrary contemplates the lake lots. On the ings by providing: build- buildings “All erected or located in- on lots 1-40, face clusive, shall Cass lake or Clinton river may as the case be.” The lake lots, front 24 to 40, inclusive, constitute single piece of land between the road and the lake, although, having platted,» necessary been it was grant “perpetual describe them as lots. The is * # * passing use in from” the lake river, in common with all other owners. If, needs as early promises be, the irrelevant are excluded from grant consideration, it seems that obvious way right passage or over the tract and not include other use. grantor right way “The of the easement of a way provided use manner-he sees fit, unreasonably
he does not gran- interfere with the Metering v. passing The fro. own to and right use tee’s reasonable reasonably way right to a has of the er passage such and also times, at all unobstructed necessary enjoyment to the or are incident Murphy passage.” Chair Co. of such 14. 172 Mich. Co., Radiator American Mich. 134, Brown, Bros. v. Grinnell See, also, 138. general grant of an easement “A or reservation reasonably neces such as is limited to a use
terms is sary burdensome and as little convenient, contemplated. possible for the servient estate as conveyance of an ease an unlimited In other words, grant unlimited use.” in law a reasonable ment is p. L. R. C. wholly grant Does the mean that every passage over unobstructed every grantor inch of lot described? If could so, plant provide playground equipment tree, boating bathing children, facilities, construct anything require grantees build which would passing turn aside to the lake. The alternative reasonably. grant be construed *12 passage space in front to the lake is unobstructed plaintiffs’ and, width of 50 feet, lot for its whole 75 feet on one side and 200feet for about addition, The lots which the clubhouse the other. space, ample both in front and rear, is built permit passage. for the The clubhouse is benefit of private appropria- and is not such a all lot owners of the lots on which it is located as- restricts tion unoccupied portion passage of them. over require plaintiffs to turn aside clubhouse straight coursé to reach from a of the lake park, would river much as beautified with or gardens, fountains, bushes, trees, and or as lawns, ordinary development, resort an with the would Michigan Beports. paraphernalia for the amusement of chil- adults and dren. adopt-
Unless construction first mentioned be plaintiff’s right way ed, it be held that created my opinion, other easements, and, neither is ten- grant able, the clubhouse does not violate the be- cause it does not interfere with a reasonable passage plaintiffs’ between lot the lake or river. agreed signboard
In circuit court it was that the should be removed, and it was eliminated from the case.
Decree is affirmed, with costs. C. J.,
Clark, McDonald, Sharpe, North, Wiest, and Butzel, JJ., concurred with Fead, J.
PEOPLE v. LUMMIS. Statutory Pape Specific Criminal Law — —Failure to Show Act. statutory rape, alleged Conviction of to have been committed on date, affirmed, about certain on appeal, there where of repeated evidence intercourse acts before at about although alleged, specific date no pointed act intercourse was segregated by out or prosecution, on which conviction was had. North, Potter, Fead, JJ., dissenting. Appeal (GreorgeV.), from Kalamazoo; Weimer J. April (Docket Submitted 1932. No. Calen- 36,115.) dar No. Decided October Barclay Pat Lummis was statutory convicted of rape. Affirmed.