James v. Irvine

104 N.W. 631, 141 Mich. 376, 1905 Mich. LEXIS 797

• Court: Michigan Supreme Court
• Decided: September 20, 1905
• Docket: Docket No. 35
• Status: Published

Opinion

Grant, J.

(after stating the facts). Complainant seeks to enjoin the defendants from the erection'of a dwelling house designed for two families, one on the first and the other upon the second floor. His theory is that there was a general restriction, binding upon the original owners and their subsequent grantees, that only a single dwelling house designed for one family should be erected upon each lot. The defendants have complied with the other alleged restrictions, and we need not discuss them. The restriction as claimed by the complainant would be valid. Harris v. Boraback, 137 Mich. 292; Watrous v. Allen, 57 Mich. 368. Restrictions in deeds will be construed strictly against the grantors and those claiming to enforce them, and all doubts resolved in favor of the free use of the property. 11 Cyc. pp. 1077, 1078. The principle governing restrictions of this character is not in doubt. The question is ably discussed in De Gray v. Club House Co., 50 N. J. Eq. 329. The court, after a full discussion of the principle and the authorities, so clearly states the law (page 340) that we quote it:

“Thelaw, deducible from these principles and the authorities applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.”

See, also, Sharp v. Ropes, 110 Mass. 381; McMurtry v. Investment Co., 103 Ky. 308; Sonn v. Heilberg, 38 App. Div. (N. Y.) 515; Summers v. Beeler, 90 Md. 474 (48 L. R. A. 54).

There is nothing in the plat or in the deed from the original grantors to the trustee, or from the trustee back to the original owners, to indicate any restrictions whatever. The original platters afterwards executed deeds of many lots, 16 of which contained no restrictions whatever, while others contained restrictions differing from each other, and only 1, the deed to Mary Sherman, contained any covenant or agreement to incorporate the restriction in other deeds.

Complainant sought by parol evidence to establish a common plan for the location and erection of the dwelling houses in the subdivision, and endeavored to show an understanding that a dwelling house for one family on each lot was intended. Even if restrictions could be thus established, the proof fails to establish the one contended for by the ■ complainant. The evidence goes no further than to show that there was an understanding that the subdivision should be used for residences, and not for business purposes. The subsequent conduct of the original grantors and their grantees shows clearly that the understanding went no further. Double houses have been built upon the same subdivision without objection, and complainant testified that he did not deem such buildings objectionable. There were such houses on the street when he bought. ■ Is a house more objectionable because built to accommodate two families on the same floor than when one is on the floor above ?

Complainant also testified that defendants’ house is not objectionable in appearance, and there are other houses upon the subdivision more objectionable than theirs. One of the original owners, complainant’s witness, testified that a house designed for two families was not detrimental to the street. Another witness for complainant testified that the five double dwellings then on the street are not detrimental to it. The defendants submitted their plans to complainant, and he stated that the building would look as good as two-thirds of those on the street.

If it be conceded that there was a valid restriction limiting each lot owner to “a dwelling” to be erected on his premises, we think the parties have construed that to mean a double house, or a house of two stories, to be ocupied for dwelling purposes by two families, as a compliance with the restriction.

This is not a case, as in, Harris v. Roraback, supra, where the restriction was to “one dwelling house to each lot,” and the grantors had incorporated that restriction in every deed they executed. Neither is it a case where, as in Gillis v. Bailey, 21 N. H. 149, “in order that the buildings erected thereon may not be crowded together, but may each be surrounded by a space of open ground,” it was agreed that “one single dwelling house, with a shed, barn, and other outbuildings requisite for the use of the same,” should be erected.

Complainant and other lot owners, including the defendants, have placed a construction upon the language of this restriction, and must be bound thereby.' Especially is this ■true where the complainant shows no damage by the erection of the building.

Other important and interesting questions are raised, but this disposal of the case renders it unnecessary to discuss them.

Decree affirmed, with costs.

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.