Tear v. Mosconi

Clark, J. Ford Park subdivision in Detroit lies south of Palmer Park boulevard (now known as Six Mile road west), and is traversed north and south by Fairfield, Muirland, Craigmoor (now known as Wilde- *243 mere), and Parkside avenues. It is crossed east and west by Auburn avenue. Immediately south of Palmer Park boulevard are five blocks, and immediately south of Auburn avenue five blocks. Along Palmer Park boulevard are 43 lots, varying in width from 20 to 24 feet, and between them, and the remaining lots is a 20-foot alley. The four north and south avenues above named, in crossing such alley and in passing between the Palmer Park boulevard lots, are 100 feet in width. To the south and across the subdivision the said avenues are but 60 feet wide. We quote pertinent portions of restrictions imposed of record on lots in question in the subdivision: “No building except a single residence costing not less than $3,500 in the first block and not less than $3,000 in the second block shall be built on Parkside, Craigmoor, now Wildemere, or Muirland avenues. * * * “No residence shall be built on Palmer Park boulevard on less than 40 feet frontage nor costing less than $3,500, and all stores built upon Palmer Park boulevard lots must be of brick construction. ■ All buildings except on Palmer Park boulevard must be built 25 feet from the front lot line.” Chernoff, the only interested defendant, purchased lots 1, 2, 3, 4, 5, in the northeast corner of the subdivision, facing Palmer Park boulevard. Lot 5, on its side, adjoins Parkside avenue. He began erecting on such lots a two-story brick building having six stores fronting on Palmer Park boulevard and two stores fronting on Parkside avenue. Construction of the stores facing the latter avenue was enjoined at the suit of plaintiffs, who own and live upon lot 219 on the east side of Parkside and immediately south of said alley. Prom the decree entered, defendant has appealed. The restriction says: “No building except a single residence * * * shall be built on Parkside * * * avenue.” Judge Jayne rightly held that *244 the two stores in question, if completed, would be on Parkside avenue, and in. violation of the language just above quoted,. The front line of the lots on Palmer Park boulevard is on that street. Stores facing or fronting on Palmer Park boulevard would not be on Parkside avenue within the meaning of the word “on” as used in the restrictions. A builder may not treat the side line of the lot as a front line and by so doing avoid the restrictions. Stores facing or fronting on Palmer Park boulevard may occupy fully Palmer Park boulevard lots, but a store may not be built “on” Parkside avenue. That there has been a waiver of the restrictions is without merit under many decisions of this court, which need not be cited. Likewise the claim of laches lacks merit. Decree affirmed, with costs to plaintiffs. Sharpe, C. J., and Bird, Steere, Fellows, Wiest, and McDonald, JJ., concurred. Snow, J., did not sit.