Stewart v. Stark

Ostrander, J. (after stating the facts). The language of the restrictions and the condition of the property when it was platted support the idea that it was intended and supposed that residences only and necessary and convenient outbuildings would be erected on the property. In this view, the restrictions are plain and not unreasonable. Doubtful meaning and real ambiguity are introduced when the restrictions are read as though applying to any but dwellings or [412] residences. A building line for the fronts of all buildings being clearly established, no good reason appears for permitting dwellings, and not stores to be built to the lines of the side or lateral streets. In other words, if it was supposed, when the restrictions were imposed, that lots would be used both for dwellings and. for business places, no reason appears for refusing the right to build a store wherever a residence might be built. Counsel for appellant supports the idea that the restrictions were made in view of a residence district in his argument in favor of a modification of the restrictions because of changed conditions. In my opinion, the restrictions were not framed for a district intended to be built up with both business places and residences. It does not follow that they may be disregarded because stores have been built at various places in the plat, or because there have been violations of the restrictions. See Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726). No radical change has been shown in the environment and character of the neighborhood. The general condition of the property and its surroundings is still the condition contemplated when the plat was made and when buyers erected homes thereon. See Moore v. Curry, 176 Mich. 456 (142 N. W. 839); Frink v. Hughes, 133 Mich. 63 (94 N. W. 601). It is unnecessary for us to consider whether the restrictions impliedly deny the right to build store buildings upon the property. If they do, defendant, who bought with knowledge of the restrictions, is in the position of an. intruder, and equity will not favor him. It is enough,, for the purposes of this case, to say that stores, not being dwelling houses, in view of the restrictions, cannot be built nearer than 25 feet to any street line. This conclusion requires an affirmance of the decree. McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.