212 Mich. 649 | Mich. | 1920
The plaintiffs by their bill of complaint herein seek to enjoin the erection by defendant of an apartment building on the north side of West Grand boulevard, between Lawton and Linwood avenues, in the city of Detroit. The case is here upon the appeal of plaintiffs, the court below having dismissed the bill of complaint. Counsel for plaintiffs and appellants has failed to comply with Rule No. 40 of this court, in that the, brief does not contain a concise statement of the facts of the case distinct from argument and of the errors upon which plaintiffs rely, the questions involved and the manner in which they are raised. We have felt at liberty, therefore, to look into the brief of the defendant and appellee for such statement. The plaintiffs) own property on the north side of the boulevard named, between Lawton upon the west and Linwood upon the east, length of block being about 860 feet. In the deeds of plaintiffs’ property, as well as in the deed of the defendant, are the following building restrictions:
“It is a condition and restriction of this conveyance, accepted by the parties of the .second part, and to bind all future owners, that.no building shall be erected on said premises except for residence purposes only, which shall be at least two stories in height and shall cost at least $2,500, and set at least fifty (50) feet back from the front lot line.”
Defendant’s land is 70 feet wide andv 204.75 feet in depth. In the rear of this property there is a 20-foot alley. The boulevard in front of the property is 150 feet wide. In this block, between Linwood and Law-ton avenues, the evidence shows that there is only one building that does not violate the restrictions and extend into the 50-foot restricted area. Two of them
The defendant’s building is a 41-apartment, 4-story building, on his lot which adjoins that of the plaintiff Teagan on the east. The building covers the entire width of the lot and extends back to within two feet of the alley, and in front is set back 50 feet from the front line of the lot, with the exception of the porches, which extend 8 feet 6 inches hearer the front lot line. Defendant’s proposed building has no windows on either the east or west sides, which are the side
At the time the bill of complaint was filed herein the defendant had commenced the erection of the building and the excavating had been done. The front basement walls were in and also' the side walls, and nearly all the contracts for the remainder of the construction had been let. The plaintiffs filed their bill of complaint seeking to restrain the erection of the building on three grounds:
(1) That the proposed building was a violation of the restrictive covenants contained in the deed.
(2) That the building as planned did not conform •with the housing code of the State, and the building ordinances of the city of Detroit.
(3) That the inclosed porches violated the restrictive covenant of the deeds in reference to building nearer than 50 feet from the front lot line.
The case was heard below upon the pleadings, and proofs taken in open court, and, as we have said, the plaintiffs’ bill of complaint was dismissed. The learned circuit judge who heard the case below viewed the premises. The court below, after hearing the testimony in the case and the arguments of counsel, found:
(а) That the defendant was not violating the building restrictions.
(б) That the defendant was conforming to the building laws of the State of Michigan and of the city of Detroit.
(c) That all the residents of the subdivision, in-
(1) The first contention of the plaintiffs is that the restrictive covenant in the deed forbids the erection of an apartment house. Counsel has cited the following cases, all of which we have examined: Hammond v. Hibbler, 168 Mich. 66; Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Moore v. Curry, 176 Mich. 456; Misch v. Lehman, 178 Mich. 225; Stewart v. Stark, 181 Mich. 408; Casterton v. Plotkin, 188 Mich. 333; Sherrard v. Murphy, 193 Mich. 352; Davison v. Taylor, 196 Mich. 605; Andre v. Donovan, 198 Mich. 256; Hartwig v. Grace Hospital, 198 Mich. 725; Rosenzweig v. Rose, 201 Mich. 681; Baxter v. Ogooshevitz, 205 Mich. 249.
In our opinion many of these cases are not at all decisive of the questions that we are here considering. We think, however, that the case of Casterton v. Plotkin, supra, has an important bearing upon the instant case. There, as here, the restriction was that the lot should be used for “residence purposes only.” The first two head-notes of that opinion are as follows:
“A conveyance of a city lot with the restriction that it should be used for residence purposes only, * * * did not exclude the erection of an apartment house; and no further or different limitations to those expressed in the deed might be implied.
*654 “Such restrictions are construed strictly against the grantor and those claiming to enforce them, all doubts being resolved in favor of the free use of the property.”
In'reversing the decree in that case and dismissing the bill of complaint this court said:
_ “Complainants have failed to establish a proposed violation by defendant of any of the restrictive covenants in his chain of title, or to clearly show that subsequent events'have by legal implication imposed additions to such original restrictions. Courts of equity do not aid one man to restrict another in the use to which he may put his property unless the right to such aid is clear.”
It will be noted that in Rosenzweig v. Rose, supra, the restriction was “the said party of the second part further agrees that he will not occupy said premises except for a dwelling house.” This court held that the words “dwelling house” meant a single dwelling.
In addition to Schadt v. Brill, supra, we may add the cases of Harris v. Roraback, 137 Mich. 292, and Bagnall v. Young, 151 Mich. 69. All that need be said in addition to this reference is that there is a clear distinction between a restriction, that property shall be used for “residence purposes only” and one where the restriction is confined to a “dwelling house.” We think this question is controlled by Casterton v. Plotkin, supra, and that under the restriction defendant had a right to build a 41-apartment building upon the premises in question.
“This act shall be known as the housing law of Michigan and shall apply to every city and organized village in the State which, by the last regular or spe*655 cial federal census, had a population of ten thousand or more, and to every such city or village as its population shall reach ten thousand thereafter.” * * *
The evidence shows that the lot in question is an interior lot. By section 12, article 2, title 1, of the act referred to, it is provided:
“Immediately behind every dwelling hereafter erected there shall be, except as hereinafter provided, a rear yard extending across the entire width of the lot. * * * In the case of an interior lot the rear yard space shall in no case be less than sixteen feet deep for a one-story dwelling, eighteen feet for a two-story dwelling, twenty feet for a three-story dwelling, twenty-four feet for a four-story dwelling, and shall be increased in depth by four feet for each additional story of the dwelling above four stories, except that in case there is a public alley in the rear of said lot upon which the lot abuts for its full width, the measurement for yard space may be made up to the center of such alley. * * * The above requirements for rear yards, however, may be decreased by one-half provided that there is no room of the dwelling which receives its legal light from such rear yard.”
We think it may be stated from the evidence in the case that this building receives no legal light from the rear yard, so that the requirements of said section for a rear yard of 24 feet may be reduced to 12 feet, and it seems it was so reduced when the board of health and department of buildings issued the permit, there being a 20-foot alley in the rear. Under the statute the rear yard is measured to the center of the alley. The building proper is erected 2 feet off the alley line, and measured to the center of the alley the rear yard space is 12 feet, and is in strict compliance with the requirements of the statute, which we think is controlling here.
It clearly appears that the defendant’s proposed building has no windows at all on the side lot lines, but the light is received from courts. The construe
“Dwellings hereafter erected may be built up to the side lot line, if the side wall is without windows.” * * *
The learned trial judge filed a written opinion in the case to which we refer, and from which we quote as follows:
“I am of the opinion that the erection of this apartment house with inclosed porches does not violate the restrictive covenant in the deed any more than have the plaintiffs in this case, and any more than have all the other residences of this subdivision, with the exception of one who stayed outside of the 50-foot limit. As has been heretofore pointed out, all of the residents, including the plaintiffs in this case, have gone beyond the 50-foot limit, and in my judgment are not in position to now claim, having acquiesced in the erection of other buildings in this same subdivision in the same block, and having violated that restrictive covenant*657 themselves, to now claim that the defendant in this case has no right to do so.”
The mere glassing in of the porches of the plaintiffs and other parties would put their buildings in the same position as the defendant’s. We have examined the record with much care, as well as the briefs of counsel, and while we have not discussed all of the points urged by plaintiffs’ counsel in his brief, we have considered what we think are the important and controlling questions in the case, and are of the opinion that the case was properly disposed of by the court below.
The decree of the circuit court is affirmed, with costs to the defendant.
