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Phillips v. Lawler
244 N.W. 165
Mich.
1932
Check Treatment
Potter, J.

Plaintiff, owner of the east 100 feet of the lands and premises situated in the city of Lansing and described as commencing 80% feet north of the southeast corner of block D subdivision of blocks 26 and 27 оf the city of Lansing, thence west 180 feet, thence north 78 feet, thence east 180 feet, thence south 78 feet to the place of beginning, filed a bill against defendants to cancel and annul the easement and to remove the building restrictions hereinafter more particulаrly described. Prom a decree for defendants, plaintiff appeals.

Both plaintiff and dеfendants claim title from R. J. Perry and Margaret G-. Perry, husband and *569 wife, who in 1923 owned all of the lands abovе described. January, 1923, R. J. Perry and Margaret G-. Perry his wife, ‍​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​‌​​​​‌‌​‌​​​​‌‌‌‌‌‌‌‌​​‌​‍sold to Grace D. Renker the west 80 feet of thе lands above described. The deed given by them to her provided:

“First parties furthermore expressly grant, bargain, and convey to second party, her heirs, executors, administrators, grantеes and assigns forever, an easement or right of way for driveway purposes and the uninterrupted use thereof as a means of ingress and egress to the above-described premises, said easement to run with the land herein deeded, and being specifically described as: Eight fеet in width off the south side of the premises still owned and retained by first parties, and described as сommencing 80% feet north of the southeast corner of block D, of the subdivision of blocks 26 and 27 оn the west line of Chestnut street, thence west 100 feet, thence north 78 feet, thence east 100 fеet, thence south to place of beginning.
“It is expressly agreed by second party for hеrself, her heirs, grantees and assigns, that the operation by first parties, on the premises immediаtely north of said above described, of the present rug factory thereon, shall not be сause for complaint upon the part of the second party, during the incumbency of first рarties so long as there shall be no interference with the use of the above-describеd easement to second party, her heirs, assigns and grantees. Said first parties further agree for themselves, their heirs, grantees and assigns, as a condition to the sale of the premisеs herein deeded to second party, that after the rug factory, which is now owned and operated by first parties on the premises retained and owned by them and being immediately to the north of said above described easement, is no longer used by first parties for business in connection with a rug factory, that there *570 after no building nor structure shall be used, built or maintained thereon for any purpose except for a private ‍​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​‌​​​​‌‌​‌​​​​‌‌‌‌‌‌‌‌​​‌​‍residence and a private gаrage either in connection with the residence or built separately therefrom. ’ ’

Soоn after that time Grace D. Renter conveyed the premises which she acquired from Perry and wife to Thomas A. Lawler and Agnes Belle Lawler, his wife, by conveyance describing the same еasement and building restrictions. Plaintiff claims title by mesne conveyances from R. J. Perry and Margaret G, Perry his wife. Building restrictions constitute reciprocal negative easements. They run with the land. Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Oakman v. Marino, 241 Mich. 591. They are construed most strictly against the ‍​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​‌​​​​‌‌​‌​​​​‌‌‌‌‌‌‌‌​​‌​‍grantor and those who claim under him. Austin v. Kirby, 240 Mich. 56; Kelly v. Carpenter, 245 Mich. 406. They are based on contract. Definitions adopted for legislative purposes in housing codes and zoning ordinances cannot be employed in interpreting restrictive covenants running with the land. Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252. The actiоn of the legislative authority of the city, in relation to the restrictions imposed by the zoning ordinаnce of the city of Lansing, cannot be considered as impairing in any way the building restrictions invоlved in the deeds in question. To so consider it would be to permit the legislative authority of the сity to impair the obligation of the contract entered into between the parties tо the conveyance. The restriction is that:

“No building nor structure shall be used, built or maintained therеon for ‍​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​‌​​​​‌‌​‌​​​​‌‌‌‌‌‌‌‌​​‌​‍any purpose except for a private residence and a privatе garage either in *571 connection with the residence or bnilt separately therefrom.”

In building rеstriction cases involving covenants, the term “private dwelling house” means a building designed as a single dwelling to be used by one family. Schadt v. Brill, supra; Kingston v. Busch, 176 Mich. 566; De Galan v. Barak, 223 Mich. 378; Seeley v. Phi Sigma Delta House Corp., supra.

The restrictions here involved were upon the land retained for the benefit of the land sold. Such restrictions are valid against the covenantor and his grаntees. This arises from the very nature of building restrictions ‍​​‌​​‌‌‌‌​‌​​‌‌‌‌‌‌‌‌‌​‌​​​​‌‌​‌​​​​‌‌‌‌‌‌‌‌​​‌​‍as reciprocal negative easements. See, also, 21 A. L. B. 1300, note. Plaintiff is not entitled to have the building restrictions involved removed. The trial court so held. Its decree is affirmed, with costs.

Clark, C. J., and McDonald, Sharpe, North, Pead, Wiest, and Butzel, JJ., concurred.

Case Details

Case Name: Phillips v. Lawler
Court Name: Michigan Supreme Court
Date Published: Sep 16, 1932
Citation: 244 N.W. 165
Docket Number: Docket No. 148, Calendar No. 36,542.
Court Abbreviation: Mich.
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