Davison v. Taylor

Fellows, J.

(after stating the faets). We do not regard the question of whether, under the facts in the case, the provisions of the contract were superseded by those in the deed of importance. The decree went no further than the restrictions in the contract, if it went as far, and it was not seriously controverted upon the argument, but that so far as defendants’ right to do business and store material is concerned, the decree protected him fully under present conditions.

“A person owning-a body of land, and selling a portion thereof, may, for the benefit of his remaining land, impose upon the land granted any restrictions, not against public policy, that he sees fit, and a court of equity will generally enforce them.” 7 R. C. L. p. 1114.

But their enforcement in a court of equity is not a matter of absolute right, and is governed by the same general rules which control equitable relief by specific performance. Moore v. Curry, 176 Mich. 456 . Mr. Justice Bigelow, in Whitney v. Railway Co., 11 Gray (Mass.), 359 ( 71 Am. Dec. 715 ), (approved by Chief Justice COOLEY in Watrous v. Allen, 57 Mich. 362 [ 24 N. W. 104 , 58 Am. Rep. 363 ]), speaking of building restrictions, said:

*612 “The purpose of inserting them in the deed is manifest. It was to prevent such a use of the premises by the grantee and those claiming under him as might diminish the value of the residue of the land belonging to the grantor, or impair its eligibility as sites for private residences. That such a purpose is a legitimate one, and may be carried out, consistently with the rules of law, by reasonable and proper covenants, conditions, or restrictions cannot be doubted. 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. Nor can there be any doubt that in whatever form such a restraint is placed on real estate by the terms of a grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding as between the grantor and the immediate grantee, and can be enforced against him by suitable process, both in law and equity.”

The defendants do not seriously controvert these elementary principles, but insist that plaintiff has waived her right to the enforcement of these covenants, that the original plan of the subdivision contemplated only single residences and restrictions uniform to those imposed on defendants in the contract, that by failing to adhere to these uniform restrictions, and by permitting other purchasers of lots to build differently than contemplated by these restrictions, she has abandoned the uniform plan and waived her right to the enforcement of the covenants against defendants; that when she contracted with defendants, she obligated herself to similarly restrict the entire street, and, failing so to do, released defendants from their restrictions entirely.

*613 It is pointed out, and considerable space is devoted to the fact, that there are stores on Davison avenue, built on lands acquired from the Davisons without restrictions of any kind. But these stores, were built before defendants entered into their contract. Deeds without restrictions, executed prior to the date of defendants’ contract, would not work an estoppel against the enforcement of the contract with defendants. Reilly v. Otto, 108 Mich. 330 ( 66 N. W. 228 ); Sherrard v. Murphy, 193 Mich. 352 ( 159 N. W. 524 ); Lambrecht v. Gramlich, 187 Mich. 251 ( 153 N. W. 834 ). While the doctrine of estoppel may be invoked by reason of acts subsequent to the date of the contract, it may not be for prior acts thereto.

A careful examination of the record satisfied us that the claim that businesses are conducted on Davison avenue, besides the stores at the east end, is not sustained. It is claimed that there are numerous boarding and rooming houses in the first block, but the proof only shows that some of the people living on the street have a boarder or two at their family table, usually relatives, and that an occasional spare room is rented; this is. the extent to which the proof goes. One lady living on the street does dressmaking, and some of defendants’ witnesses speak of a knitting factory in one of the basements. Inquiry develops the fact that three old ladies live at this place, and have hand machines which they use to knit sweaters and other articles with. Upon these facts we are unable to conclude that business has so far entered this block as to deprive it of its residential character, or release defendants, from the covenants.

It is further contended by defendants that plaintiff has permitted the erection of other than single residence houses to such an extent that defendants are now released from all restrictions. The facts do not justify such conclusion. We are satisfied from the *614 record that there has been no radical change shown in the environment and character of the neighborhood; the general condition of the property and its surroundings is still the condition contemplated when the land was platted and purchasers of lots built their houses; it is strictly a residential district. There is no claim that there are any four-family apartments, such as defendants planned to build on this street. Defendant claims there is one three-family flat on the street, but the proof shows this to be a double house with an attic. There are four double houses, all told, on the entire street, and some few two-family flats similar to defendants’. In the block where plaintiff and defendants live there are 31 lots fronting on Davison avenue. Including defendants’ house, there are four two-family houses in this block. We do not think these facts show such a deviation from the original plan as to estop plaintiff from insisting upon compliance with the restrictions by the owner of land immediately adjoining hers.

By permitting defendants to expend money in remodeling their house into a two-family flat and using it as remodeled for a number of years she may have estopped herself from claiming that they cannot maintain it in its present condition, and the trial court evidently took this view of it, but it does not follow from this that all restrictions are waived, and that defendants may now use this lot without restrictions of any kind, nor does it follow that a single or an occasional breach of the original plan in some distant part of the plat, or under circumstances such as not to injuriously affect a party’s property, or where there is no radical or material change in the general conditions, or surroundings, estop such party from asserting his rights against an adjacent owner whose breach of restrictions threaten to materially diminish the value and desirability of his property.

*615 “The true rule” says Mr. Justice Brooke, speaking for the court in Misch v. Lehman, 178 Mich. 225 ( 144 N. W. 556 ), “seems to be that, even after one or more breaches, equity will grant relief if the restriction can be shown to be of value to the complainant, and such breaches have not resulted in a subversion of the original scheme of development resulting in a substantial, if not entire, change in the neighborhood.”

Mr. Justice Montgomery, speaking for the court in Frink v. Hughes, 133 Mich. 63 ( 94 N. W. 601 ), said:

“More than this, as to such restrictions as are contained in this deed, it does not necessarily follow that, because the restrictive covenant is not inserted in deeds of all the property on this entire plat, therefore this restrictive clause is of no effect.”

Supporting the rule announced, see Schadt v. Brill, 173 Mich. 647 ( 139 N. W. 878 , 45 L. R. A. [N. S.], 726); Stewart v. Stark, 181 Mich. 408 ( 148 N. W. 393 ); Moore v. Curry, supra; Sherrard v. Murphy, supra; Rowland v. Miller, 139 N. Y. 93 ( 34 N. E. 765 , 22 L. R. A. 182); Brigham v. H. G. Mulock Co., 74 N. J. Eq. 287 ( 70 Atl. 185 ); Brown v. Huber, 80 Ohio St. 183 ( 88 N. E. 322 , 28 L. R. A. [N. S.] 705); Clark v. Martin, 49 Pa. 289 .

In the instant case the plaintiff has erected a house for her personal use, for her home, worth $12,000. It is apparent that the erection of a four-family flat, or the establishment of a business place on the adjoining lot, would materially affect its desirability as a home and decrease its value; one of the witnesses says the value would be decreased one-half. She, therefore, has a peculiarly personal interest in the enforcement of the restrictions against the owner of the adjoining land. From what we have already said it is apparent that she is not estopped from asserting these rights personal to her, and appurtenant to her property.

There is another view of this case which also precludes reversal. Defendants insist upon, and by the *616 decree appealed from were sustained in, their light to maintain a two-flat dwelling; at the same time defendant insists that plaintiff has waived her right to any restrictions by the fact that she has, in a few instances, given other landowners rights equal to, but not in excess of, their rights under the decree. In no instance on the entire street has plaintiff consented to the erection of any house for more than two families, and there are but few instances where she has done this. If she is estopped by this consent, the estoppel can go no farther than the consent, and defendants can claim no further foénefit, from the application of the doctrine of estoppel, than was given them by the trial court.

The decree appealed from amply protects all rights of the defendants and should be and is affirmed. Plaintiff will recover costs of this court.

Kuhn, C. J., and Stone, Osteandee, Bied, Mooee, Steeee, and Beooke, JJ., concurred.