Stahl v. Dyer

221 N.W. 442, 244 Mich. 521, 1928 Mich. LEXIS 934

Opinion

McDonald, J.

The defendants áre owners, of the fee in lot 51, located at the corner of Shipp.erd and Agnes avenues in the city of Detroit, Wayne county, Michigan. The use of the lot is restricted to residence purposes only. The defendants attempted to build a commercial garage on the lot and the plaintiff filed a bill to restrain them. From a decree granting the relief prayed for, the defendants ap pealed to this court. In Stahl v. Dyer, 235 Mich. 355, we affirmed the decree of the circuit court, holding that the plaintiff had a right to impose the restriction, that it was of actual benefit to. him and that there had been no material change in the character of the neighborhood since it was imposed. The decree was filed in June, 1926. Six months later the defendants filed a petition in the Wayne circuit court praying that the decree be vacated. At the hearing the petition was dismissed. The defendants have appealed.

The only question which the defendants have a right to urge in this suit is whether, since the decree of the court in June, 1926, there has been such a substantial change in the character of the neighborhood where the lot is located as to make it inequitable to now enforce the restriction.

From a reading of the record it is apparent that the defendants do not rely so much upon a change in the character of the neighborhood as they do upon the claim that the restriction never was of any value to the plaintiff. We settled that question adversely to their claim when the case was before us in 1926. It is still of value unless the character of the neighborhood has changed. There is no evidence of any material change.

The decree of the circuit judge is affirmed, with costs to the plaintiff..

Fead, C. J., and Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. North, J., did not sit.