Signaigo v. Begun

207 N.W. 799 | Mich. | 1926

Upon 74 of the 80 lots single dwellings have been erected of substantial character. Some of these are not exactly on the building line; some are back of it, and some are in front; there are some of the second stories which also project slightly beyond the building line; but these slight encroachments measuring at most a few inches, and in one case but .24 of an inch, are too inconsequential to merit discussion. The plaintiffs are not estopped by them from protesting against the erection in their neighborhood of an apartment house with 19 apartments and having stores on the ground floor.

There is some force in plaintiffs' contention that the word "building," found in 79 of the deeds, is somewhat modified and restricted by the later use of the term "dwelling" in the restrictions. DeGalan v. Barak, 223 Mich. 378; Killian v.Goodman, 229 Mich. 393; Schadt v. Brill, 173 Mich. 647 (45 L.R.A. [N. S.] 726). But we shall not dispose of the case on this question, as we are convinced upon this record that there was a common plan from the inception down to the present time carried out by every one of the owners of the 74 occupied lots for a high class residential district of single dwellings and that defendant had notice thereof.

Mr. Michelson of the Michigan Land Home Company was deceased at the time of the hearing of this case. Defendant, however, called as a witness in his behalf the former bookkeeper of the company who gave some testimony thought to be favorable to the defendant. But upon cross-examination he admitted that:

"It was originally intended to restrict the subdivision to residence purposes and dwellings, other than Hamilton. The agents were instructed to tell purchasers that the property was restricted that way."

And all of the home owners who testified on the subject, and there were a number of them, gave testimony tending to show that they were induced to purchase lots and to erect their homes on the understanding that the street was a residential street of single dwellings and that everything else was tabooed. The oral testimony fortified by numerous photographs presents a situation that could scarcely be overlooked by a most casual observer, and in addition to this there is positive testimony that defendant was informed before he purchased the lot that the street was restricted to "single residences only." This testimony was corroborated but was disputed by defendant. But defendant's testimony on the whole was quite unsatisfactory and we are persuaded that upon this disputed question of fact we should find with the plaintiffs.

The recent case of Sanborn v. McLean, 233 Mich. 227, will be found illuminating on many of the questions here involved.

There has been no such laches on the part of the plaintiffs as to defeat their right to relief. Not only was defendant given actual notice before he purchased, but he and his contractor promptly received protests from interested parties on beginning the work. Attempts to adjust matters failed and the bill was filed before the work had progressed very far.

The right, if it has been acquired, to live in a district uninvaded by stores, garages, business and apartment houses is a valuable right. In Allen v. City of Detroit, 167 Mich. 464 (36 L.R.A. [N. S.] 890), it was said:

"Building restrictions are private property, an interest in real estate in the nature of an easement, go with the land, and are a property right of value, which cannot be taken for the public use without due process of law and compensation therefor; the validity of such restriction not being affected by the character of the parties in interest."

It is the province of a court of equity to protect the individual in this as in other property rights. SeeHarris v. Roraback, 137 Mich. 292 (109 Am. St. Rep. 681); Misch v. Lehman, 178 Mich. 225; Hartz v. Kales Realty Co., 178 Mich. 560; Stewart v. Stark, 181 Mich. 408; Kingston v. Busch,176 Mich. 566; Harvey v. Rubin, 219 Mich. 307; Swan v. Mitshkun, 207 Mich. 70; Kelman v. Singer, 222 Mich. 454;McQuade v. Wilcox, 215 Mich. 302 (16 A.L.R. 997);McNair v. Raymond, 215 Mich. 632; Harley v. Zack, 217 Mich. 549; Oliver v. Williams, 221 Mich. 471;Nechman v. Ross, 225 Mich. 112; Davison v. Taylor, 196 Mich. 605; Rosenzweig v. Rose, 201 Mich. 681;Farley v. Finn, 226 Mich. 205; Moreton v. Louis G. Palmer Co., 230 Mich. 409; Putnam v. Ernst, 232 Mich. 682;Marrick v. Furnari, 233 Mich. 146. An examination of these cases will disclose that this court has not hesitated in proper cases to restrain by injunction the invasion of these valuable property rights. It will not hesitate so to do in the instant case, nor in the future.

The decree appealed from will be set aside and one here entered in conformity with the prayer of the bill. Plaintiffs will recover costs of both courts.

BIRD, C.J., and SHARPE, SNOW, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred.