Moreton v. Louis G. Palmer & Co.

Fellows, J. This record doubtless presents defendant’s contention as favorably as it could be presented but we are not satisfied its contention should *410 be sustained. Plaintiff files this bill to restrain the erection of a store building in violation of building restrictions; she owns and has a home, as we understand the record, fronting on Connecticut avenue on the north 25 feet of lots 5 and 6 of Stevens’ subdivision of part of quarter sections 17 and 24 of 10,'000-acre tract in the city of Highland Park. Defendant owns lot 3 of the same subdivision on the corner of Connecticut and Woodward and proposes to erect a store on it fronting on Woodward avenue and about 150 feet from plaintiff’s residence. The restrictions in the deeds in this subdivision cover about a page and a half of the record and need not be quoted in full. They provide that: “Nothing but one single dwelling house, of two or more stories and the necessary outbuildings shall be erected on each lot.” Then follows much of detail as to the kind of a dwelling house which may be erected, its distance from the street line, its value, etc. Certain lots to which we shall presently refer are exempted. The restrictions recite that they are h> hold until January 1, 1947. Defendant in its answer admits the restrictions and that it intends to violate them. It insists upon its right so to do by reason of such changed conditions as would make the granting of the relief inequitable. There is also some claim of violations of the restrictions but these so far as we are able to discover consist in the use of a dwelling house for a public library and the erection of a store building fronting on Woodward to be used in connection with a greenhouse on the exempted lots above noted and which are referred to' in the restrictions in the following language: “That lots 10 to 13 and 73 to 78 in said subdivision are now occupied for greenhouse purposes and they may continue to be so occupied and for that purpose the buildings now thereon may be repaired or added U-*. 99 I/O. *411 The store building referred to is used in connection with the greenhouse and its erection doubtless did not infringe the restrictions. Woodward avenue is the principal business street of Highland Park. No new residences have been built along it either in the Stevens subdivision or elsewhere for a number of years. But it is not made to appear that there is not enough unrestricted property fronting upon it to meet all demands of business, or that the demands of business create such greater equities in the owners of Woodward avenue frontage over the equities of those who have established their homes in reliance upon restricted covenants in their deeds as to require a court of equity to lift the restrictions. The street car traffic on Woodward, including the interurban cars, has increased in the last few years, but this is not sufficient. Harvey v. Rubin, 219 Mich. 307. It is doubtful if there are many streets in Highland Park or Detroit upon which either the street car or vehicular traffic, or both, have not increased by leaps and bounds in the last 10, 15 or 20 years. Several real estate dealers were called as witnesses by defendant; some of them had Woodward avenue frontage in this subdivision which they desired to, but were unable, to sell due to the restrictions. They place a very high valuation on this frontage if the .restrictions could be removed and give testimony to the effect that the erection of dwellings on it would not be a profitable venture, that the residences would not rent for enough to bring a return on the investment. In the final analysis this proves, and only proves, that the lots would sell for more if the restrictions were removed. This would be advantageous to the owners of Woodward avenue frontage who have purchased with full knowledge of the restrictions, and disadvantageous to the home owners on the balance of the subdivision who likewise purchased with full *412 knowledge of the restrictions and in reliance thereon. There has not been such a radical change in the environments and character of the neighborhood as that we can say that the equities of the owners of Woodward avenue frontage outweigh the equities of the-owners of the balance of the subdivision. This case is like that of Moore v. Curry, 176 Mich. 456. Woodward avenue frontage in Highland Park, was there involved. The same claim was there made-as is here made and the same kind of proof was there-offered as we find in this record; this is demonstrated by a short quotation from the opinion, in that case.. Having reference to the claim and the testimony, it was. there said: “In the final analysis counsel for defendants raise-for consideration and discuss but the one proposition that the environments and character of the locality, and especially that portion fronting on Woodward, avenue, have so changed since the platting of this-property that equity ought not to enforce this restriction. In support of this a rapid and phenomenal growth of the city of Detroit and its suburbs is shown, especially extending out Woodward avenue and into-Highland Park in and around this subdivision. Testimony was introduced showing that Woodward avenue-frontage in that locality is not desired or in demand for residence purposes; that it has become a business: street and property on it only in demand for business-purposes; that unrestricted land fronting on it sells much higher than that restricted; that 16 stores have-been erected on said avenue within a block of Curry-stone; that most of them were erected since 1906; and that various kinds of merchandising, such as are-usually conducted in the business part of a municipality, are conducted in said stores.” But it was there held: “The only equitable consideration for refusing this, relief, under present conditions, is that the lots on Woodward avenue would sell for more with the restrictions removed. This is not sufficient. *413 “No such radical change has been shown in the environments and character of the neighborhood in which the restricted district is situated as to invoke the limitation contended for and justify the court in refusing at this time the relief asked.” This case has been consistently followed by this court. In Sherrard v. Fine, 222 Mich. 392, the locus in quo was entirely surrounded by and given over to business, and the same claim was made as is here urged. We sustained the restrictions. In McQuade v. Wilcox, 215 Mich. 302 (16 A. L. R. 997), business had likewise crept into the neighborhood and had obtained a substantial hold, the removing of the restrictions would very materially enhance the value of defendant’s property, but we declined to lift them. To the same effect is Benzing v. Harmon, 219 Mich. 532, and Andre v. Donovan, 198 Mich. 256. And in Swan v. Mitshkun, 207 Mich. 70, it was said by Mr. Justice Steere, speaking for the court: “But aside from and beyond that issue, those owning property in a restricted residential district or neighborhood, and especially those who have their homes there, and been led to buy or build in such locality by reason of restrictive covenants running with the land imposed upon the street, block or subdivision in which they have purchased, are entitled to protection against prohibited invasion regardless of how close business may crowd around them on unrestricted property, provided the original plan for a residential district has not been departed from in the restricted district, street or block, and the restrictive requirements have been generally enforced, or accepted and complied with by purchasers. * * * The case falls well within that class where it is the policy of the courts of this State to protect property owners who have not themselves violated restrictions in the enjoyment of their homes and holdings, free from inroads by those who attempt to invade restricted residential districts and exploit them under some specious claim that others have violated the restrictions, or business necessities nullified them.” *414 • The case of Windemere-Grand Improvement & Protective Ass’n v. American State Bank, 205 Mich. 539, is not at all in point. In that case the plaintiff association conceded that there had been such a change in conditions as to render the enforcement of the restrictions inequitable, and the association had been active in lifting restrictions on other properties-; the objection being the nearness of the building line to the street line of Windemere avenue. The holding in that case in no way disturbed the holding in Moore v. Curry, supra, and the other cases cited. The decree will be reversed and one here entered in conformity with the prayer of the bill. Plaintiff will recover costs of both courts. McDonald, C. J., and Clark, Bird, Sharpe, Moore, Steere, and WlEST, JJ., concurred.