Windemere-Grand Improvement & Protective Ass'n v. American State Bank

172 N.W. 29, 205 Mich. 539, 1919 Mich. LEXIS 520
CourtMichigan Supreme Court
DecidedMay 2, 1919
DocketDocket No. 106
StatusPublished
Cited by28 cases

This text of 172 N.W. 29 (Windemere-Grand Improvement & Protective Ass'n v. American State Bank) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Windemere-Grand Improvement & Protective Ass'n v. American State Bank, 172 N.W. 29, 205 Mich. 539, 1919 Mich. LEXIS 520 (Mich. 1919).

Opinion

Steere, J.

Plaintiff’s bill of complaint was filed to enjoin construction by the defendant bank of a one-story reinforced concrete and stone bank building in alleged violation of certain building restrictions on lot 4 of Curry’s subdivision of Pallister’s subdivision of part of quarter section 4, 10,000-acre tract, in the village of Highland Park, Michigan. From a decree of the Wayne county circuit court in chancery dismissing said bill plaintiff has appealed, relying largely for reversal on Moore v. Curry, 176 Mich. 456, where the restrictions in this same subdivision were involved, reference to which may be made for a general understanding of the situation and comparatively recent developments in the locality up to that time.

Curry’s subdivision contains 312 lots, of which lots 1 to 12 inclusive are situated on the east side of Woodward avenue, lot 4 being at the northeast comer of Woodward and Windemere avenues, facing Woodward with its southerly side along the north side of Windemere, which extends east in the subdivision between Woodward and Oakland avenues. The lot is 53.92 feet in width fronting on Woodward, and 150 feet in depth with a 20-foot north and south alley at its rear, east of which the lots front on Windemere.

Lot 4 was deeded by Curry, one of the original platters of the subdivision, to John D.' Taylor on June 14, 1906. This deed contained substantially the same restrictions relative to residence purposes, etc., set out in Moore v. Curry, supra, authorizing, however, the erection of two dwellings on the lot, one on the front, “not less than 35 feet from the front line,” to cost at least $3,500, and one on the rear, “not less than 10 feet back from the street line,” to cost at least $2,500. Taylor conveyed the lot to one Burns by a deed containing those restrictions; Bums to one Blanck by a deed in regular form without the restrictions; Blanck and wife to the defendant Welt Company by conveyance without'the restrictions and the Welt Company [541]*541sold to the defendant bank by a land contract without the restrictive clause. All of.these conveyances describe the property as lot number 4 of said subdivision according to the recorded plat thereof, giving liber and page. Upon the face of the original plat appears a blue line extending along and just north of the north line of Windemere avenue to Woodward including lot 4, on which is written, “building line 22 feet from street line.” It may be noted that the legal significance of this blue line was particularly urged for plaintiff in view of the issue developed on the hearing, it being then conceded, and testified by plaintiff’s witnesses, that Woodward avenue had become strictly a business street and there was no objection to the proposed building if kept north of this line. Plaintiff’s president testified of its character in part:

“We felt it was a business street and ought to be built up. * * * I want to see the business there. * * * This property, I understand, is worth over $700 a foot. * * * We don’t imagine it for a residence at all.”

Asked by the court, “What is the objection to this building?” he replied:

“There is no objection to it, * * * It is the objection to bottling up Windemere Avenue with prop? erty that they did not purchase for building purposes, that is the way that we have argued it up there.”

Of this issue, defendant’s counsel said: “As I understand it, the real contention is where the south line of this business block should be located”; to which plaintiff’s counsel replied: “That is it.”

The question of enforceable building restrictions has so frequently been before this court and discussed in its various aspects that further discussion of the settled rules would be but repetition. The urged limitation on equitable jurisdiction to enforce restrictive building covenants not found to have been affirma[542]*542tively shown in Moore v. Curry, supra, is. conceded to exist here. There complainant sought to restrain the palpable violation of a restrictive covenant prohibiting the erection of a proposed business block upon which defendants had started work in a small way to test the attitude of residents in the district towards such an invasion. The only possible defense against the injunction suit which followed was that equity ought not to enforce the restriction because conditions had changed since the property was platted, and Woodward avenue had become an important and strictly business street. This was strenuously denied by plaintiff and found by the trial court not affirmatively shown after hearing witnesses and verifying their testimony by a personal inspection of the locality. On the record there made this court found no impelling reasons to disturb the conclusions reached by the trial court and affirmed the decree, without, however, foreclosing the privilege of “bringing to the attention of the court any marked change in the conditions of the property in the future.” Here the changed conditions there contended for and denied are conceded as to Woodward avenue and this lot, which it'is admitted only can and should be devoted to business purposes. The restriction to residential purposes is not only waived, but we-are told by plaintiff’s president that it is “felt” that Woodward' avenue as a business street ought to be building up and the desire is to see business built up there, plaintiff’s only claim being a qualified right to dictate on what portion of lot 4 the building, to which in itself there is no objection, shall be built.

The various conveyances of this lot describe it as “lot numbered four, on the east side of Woodward avenue, in Curry’s subdivision (etc.), as recorded September 11, 1905, in liber 24 of plats, page 19, Wayne county records.” It is contended for plaintiff that such reference to the plat in the deeds makes it a [543]*543part thereof as completely as delineating it in the instruments would do, and therefore the blue line with the notation was a building restriction running with the land and binding on all grantees taking under such description.- The general rule as to the significance of reference in a deed to a plat in aid of description is of doubtful application for support of the claimed exacted covenant, or imposed restriction upon the use of lot 4, under the facts shown here. This plat is without restrictions or limitations of any kind, except what may be inferable from the blue line and memorandum as to building limit in connection with it. If the general plan of limitations and restrictions for residence purposes, shown to have been adopted in subsequent conveyances, had been fully declared and properly delineated in the plat as a general plan of imposed restrictions on the subdivision, and by apt reference to the restrictions therein they had been made part of the covenants in the deed, as a condition annexed to the grant, the rule invoked would be nearer in point. As this property was platted lot 4 and adjacent lots along the east side of Woodward avenue fronted on that street, extending back 150 feet to a north anfl south 20-foot alley, beyond which the directions of the width and length of the lots was changed and they were fronted on Windemere avenue, running back north to an east and west alley. It is fairly inferable from what appears on the plat itself that the blue line running along the north side of Windemere avenue was put there with particular reference to lots fronting on that street, and such seems clearly indicated by the deed of lot 4, fronting on Woodward, soon thereafter given by the platter to Taylor.

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Bluebook (online)
172 N.W. 29, 205 Mich. 539, 1919 Mich. LEXIS 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/windemere-grand-improvement-protective-assn-v-american-state-bank-mich-1919.