108 Mich. 330 | Mich. | 1896
In 1891, complainant and his wife conveyed, by deed, a lot in Detroit, with the following restrictions :
“ This conveyance is made with the express restriction that there shall not be placed or erected, at any time, on said premises now conveyed, any store, but only dwelling houses. * * * To have and to hold the said premises above bargained and described, * * * with the express reservation and restriction that no store or saloons shall be erected or placed on said premises now here conveyed, and that said real estate shall be kept for dwelling-house purposes only.”
In 1894 the complainant filed a bill in chancery, alleging that for several years he was the owner of said property; that defendants came to him to buy said property; and that he told them that he had purchased the premises with a view of erecting dwelling houses thereon, and that he would not sell to them for any other purpose than to be used solely for dwelling-house purposes, and that no store,. saloon, or business place should be erected on said vacant lot; that thereupon the complainant entered into a contract of sale to the defendants of said premises, with the reservation as stated in his deed to them; that the defendants have moved a large frame building, which was used where it formerly stood for saloon purposes, and are now fixing it up to use as a saloon and for the sale of intoxicating liquors; and asking that the defendants be enjoined from so putting the saloon on said premises.
Defendants answered, and averred that in July, 1888, the complainant sold to Komminsky the property adjoin
The trial judge granted the relief prayed for in complainant’s bill. His action is sought to be reversed here.
It is urged by the defendants that, if the condition in the deed was ever valid, it has been waived by the complainant, and that he cannot enforce it, because he has conveyed the balance of lots 113, 114, and 115 without restrictions, and has authorized the carrying on of a saloon on his own property; and they cite a large number of cases, relying especially upon the cases of Duke of Bedford v. Trustees of British Museum, 2 Mylne & K. 552; Barrie v. Smith, 47 Mich. 130; Smith v. Barrie, 56 Mich. 314; Jenks v. Pawlowski, 98 Mich. 110. The
The record does not disclose any waiver on the part of the complainant. On the contrary, it shows that his purpose in buying the land sold to the defendants was to prevent the erection of a saloon there, and to protect his store on the next corner and his residence property in the next block from being depreciated in value by the proximity ■of a saloon. In Watrous v. Allen, 57 Mich. 368, it was held that—
“Every owner of real property has the right so to deal with it as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains. The only restriction on this right is that it shall be exercised reasonably, with a due regard to public policy, and without creating ■any unlawful restraint of trade.”
To the same effect are Smith v. Barrie, 56 Mich. 314; Abraham v. Stewart, 83 Mich. 7; Whitney v. Railway Co., 11 Gray, 359. The same doctrine is held in the Michigan cases cited by counsel for appellants.
The decree of the court below is amrmed, with costs.