Phillips v. Lawler, 244 N.W. 165

244 N.W. 165 | Mich. | 1932

Plaintiff, owner of the east 100 feet of the lands and premises situated in the city of Lansing and described as commencing 80 1/2 feet north of the southeast corner of block D subdivision of blocks 26 and 27 of 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 particularly described. From a decree for defendants, plaintiff appeals.

Both plaintiff and defendants claim title from R.J. Perry and Margaret G. Perry, husband and wife, who in 1923 owned all of the lands above described. January, 1923, R.J. Perry and Margaret G. Perry his wife, sold to Grace D. Renker the west 80 feet of the 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, grantees 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 feet in width off the south side of the premises still owned and retained by first parties, and described as commencing 80 1/2 feet north of the southeast corner of block D, of the subdivision of blocks 26 and 27 on the west line of Chestnut street, thence west 100 feet, thence north 78 feet, thence east 100 feet, thence south to place of beginning.

"It is expressly agreed by second party for herself, her heirs, grantees and assigns, that the operation by first parties, on the premises immediately north of said above described, of the present rug factory thereon, shall not be cause for complaint upon the part of the second party, during the incumbency of first parties so long as there shall be no interference with the use of the above-described 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 premises 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 thereafter no building nor structure shall be used, built or maintained thereon for any purpose except for a private residence and a private garage either in connection with the residence or built separately therefrom."

Soon after that time Grace D. Renker 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 easement and building restrictions. Plaintiff claims title bymesne 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. PhiSigma Delta House Corp., 245 Mich. 252. The action of the legislative authority of the city, in relation to the restrictions imposed by the zoning ordinance of the city of Lansing, cannot be considered as impairing in any way the building restrictions involved in the deeds in question. To so consider it would be to permit the legislative authority of the city to impair the obligation of the contract entered into between the parties to the conveyance. The restriction is that:

"No building nor structure shall be used, built or maintained thereon for any purpose except for a private residence and a private garage either in connection with the residence or built separately therefrom."

In building restriction 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 grantees. This arises from the very nature of building restrictions as reciprocal negative easements. See, also, 21 A.L.R. 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, FEAD, WIEST, and BUTZEL, JJ., concurred.