Kalisch v. Sapperstein

WlEST, J. This is an appeal from a decree restraining defendant from erecting a “multiple apartment house of 31 apartments” at the southwest corner of Linwood and Monterey avenues, on lots 274 and 2,75 of Gilmartin & Gray’s section of the Linwood Heights subdivision of part of quarter sections 13 and 28, 10,000-acre tract, in the city of Detroit. The circuit judge decreed such an apartment house would violate the following restrictions imposed upon lots in the subdivision: “The said lots, excepting those fronting on Dexter boulevard and Linwood avenue A. (shall be used *163 solely for residence purposes). B. (No single dwelling) shall be erected on any of saidi lots, the cost of construction of which (shall be less than $3,500). C. (No building shall be erected nearer than 30 feet to the street line) of said lot. * * * No more than D. (one barn, shed, stable or garage shall be built or maintained as appurtenant to each building) nor shall any such structure be erected except on the rear portion of the premises and simultaneous with or after the completion of the residence or dwelling house built upon the front of the lot, nor shall any such shed or bam' or appurtenant structure be used as a dwelling. E. (No billboards) or advertising signs shall be erected or maintained', on the premises, except ‘For Sale’ or ‘To Rent’' signs. F. (No two-family flats or duplexes, so-called,, the cost of construction of which shall be less than $4,500, shall be erected on any of said lots; G-(nor any four-family flat or apartment house, the cost of construction of which shall be less than $8,000). H. (No four-family flat or apartment house shall be erected on a ‘site’ less than 52% feet in width). The word ‘site’ herein contained, for the purpose of ascertaining the building lines hereinbefore mentioned, shall be considered the same as the word ‘lot.’ I. The (grade line of all buildings shall be ten inches above the street sidewalk level). J. (All lots fronting on Dexter boulevard and Linwood avenue are hereby expressly excepted) from all of the foregoing restrictions. K. (No frame building shall be erected on any lot fronting on Dexter boulevard and Linwood avenue.)” The learned trial judge evidently relied on the holding in Marick v. Furnari, 233 Mich. 146. Upon rehearing the opinion in that case was overruled (237 Mich. 239). That case has also been overruled in Goldstick v. Thomas, 237 Mich. 236. The latter case involved building restrictions in another subdivision like those in the suit at bar, except as to side line restrictions. The case at bar is ruled by the Gold-stick Case. Defendant is proceeding within his rights in erecting the apartment house, and the decree is reversed and the bill dismissed. *164 Plaintiffs contend that, under the circumstances, no costs should be awarded either party. We think defendant is entitled to costs, and the decree dismissing the bill will so provide. Sharpe, C. J., and Bird, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred.