Docket No. 125 | Mich. | Dec 20, 1913
The bill of complaint in this cause is filed for the purpose of permanently enjoining defendants from violating a building restriction contained in the conveyance under which they hold title. From a decree in favor of complainants, defendants appeal.
The restriction involved is the same as that considered in the case of Schadt v. Brill, 173 Mich. 647" court="Mich." date_filed="1913-02-18" href="https://app.midpage.ai/document/schadt-v-brill-7947333?utm_source=webapp" opinion_id="7947333">173 Mich. 647 (139 N. W. 878) ; defendants’ lot being one of the 77 lots contained in the Whitney subdivision. Of these 77 lots, 21 face the East Grand boulevard, lying upon the west side thereof, comihencing at Mack avenue and running south. Defendants’ property consists of lot 32 and the northerly 10 feet of lot 31, and lies upon the southwest comer of Mack avenue and the East Grand boulevard. It was the expressed intention of defendants to erect a four-family flat thereon, the carrying out of which the decree of the court below perpetually enjoined. The first building south of defendants’ lot, and about 100 feet distant, is the. two-family or duplex house, the existence of which was urged by defendant in Schadt v. Brill, supra, as a reason why he should not be enjoined from consummating a like breach of the restrictive clause. This claim was considered, and dismissed as untenable
Several answers to this claim are suggested. In the first place defendants owned their lot at the time the structure was erected upon lot 29. If any legal duty to act was imposed upon the owners of other lots in the same subdivision, it rested upon defendants, as well as upon complainants.
Again, it must be borne in mind that the exact meaning of the restriction itself was not free from doubt. It was not entirely clear that a dwelling house like that located upon lot 29 could not be legally erected under the restriction until the determination of the case of Schadt v. Brill, supra. It is doubtless true that a continued acquiescence in successive breaches of the restriction would afford ground for the claim of estoppel because of the fact that the contemplated character of the property would thus be destroyed, and, that, stage having been reached, it would be inequitable to grant relief. But we are of opinion that acquiescence in a single breach of the character of that upon lot 29, under the circum
The decisions in Trustees of Columbia College v. Thacher, 87 N.Y. 311" court="NY" date_filed="1881-01-17" href="https://app.midpage.ai/document/trustees-of-columbia-college-v--thacher-3632146?utm_source=webapp" opinion_id="3632146">87 N. Y. 311 (41 Am. Rep. 365); Jackson v. Stevenson, 156 Mass. 496" court="Mass." date_filed="1892-06-22" href="https://app.midpage.ai/document/jackson-v-stevenson-6424251?utm_source=webapp" opinion_id="6424251">156 Mass. 496 (31 N.E. 691" court="Mass." date_filed="1892-06-23" href="https://app.midpage.ai/document/brown-v-cotton--woolen-manufacturers-mutual-insurance-co-of-new-england-6424266?utm_source=webapp" opinion_id="6424266">31 N. E. 691, 32 Am. St. Rep. 476), and Schefer v. Ball, 104 N.Y.S. 1028" court="N.Y. Sup. Ct." date_filed="1907-03-15" href="https://app.midpage.ai/document/schefer-v-ball-5410622?utm_source=webapp" opinion_id="5410622">104 N. Y. Supp. 1028, 53 Misc. Rep. 448, cited by defendants, are not in conflict with this principle.
Defendants urge that there is such a change in the character of the neighborhood as to make it inequitable to enforce the restriction. We are of opinion that the case upon this point is ruled by the late case of Moore v. Curry, 176 Mich. 456" court="Mich." date_filed="1913-07-18" href="https://app.midpage.ai/document/moore-v-curry-7947589?utm_source=webapp" opinion_id="7947589">176 Mich. 456 (142 N. W. 839). Here is a large subdivision upon which there have been erected many beautiful homes, costing up to $20,000 each. The development of that part of the plat fronting upon the boulevard is shown by the record to have been of a particularly high class, with the single exception of the house upon lot 29. There can be no doubt that the erection of the contemplated structure upon the corner of Mack avenue and the boulevard would very seriously affect the values of the complainants’ property, and would thus destroy that negative easement (Allen v. City of Detroit, 167 Mich. 464" court="Mich." date_filed="1911-11-23" href="https://app.midpage.ai/document/allen-v-city-of-detroit-7946671?utm_source=webapp" opinion_id="7946671">167 Mich. 464 [133 N. W. 317, 36 L. R. A. (N. S.) 890]),
The decree of the lower court perpetually enjoins defendants from proceeding with the construction, erection, or maintenance, or causing to be constructed, erected, or maintained, any flat, double house, apartment, or any other building except a single dwelling house, intended or suitable for the separate occupancy for one family. It further perpetually restrains defendants from doing any act which will in any wise be a violation of the building restrictions on the lot in question.
Defendants claim that this decree is too broad and far-reaching in its terms (citing Frink v. Hughes, 133 Mich. 63 [94 N. W. 601], and Moore v. Curry, supra). They contend that the only question litigated in the present proceeding is the right of defendants to erect a four-family flat at this time; other features of the restriction and the possible development in the future as they might bear upon the restriction were, it is said, not in issue. While it seems doubtful that any future development will so change the situation as to make the enforcement of the restriction inequitable, it is not unreasonable that the decree should be so modified as to protect the defendants in case such a radical change should occur in the future.
The decree will stand affirmed, except that it shall be without prejudice to the right of the defendants to move hereafter for a modification or dissolution of the injunction.