Rosenzweig v. Rose

Kuhn, J. (after stating the facts). The contention of counsel for the defendant and appellant is thus stated in their brief: “It is the contention of the defendant that the restriction which was originally imposed upon the whole [684] of the subdivision has been abandoned and ceases to exist, by reason of the many violations that it has suffered, and that the conditions of the subdivision and the surrounding locality have so changed as to make it inequitable to enforce the restriction.” The court below found that there had not been a complete change in the neighborhood. We are satisfied that in this conclusion he was quite correct. The property is still devoted to the purposes for which it was originally intended, that is, it is still a strictly residential district — in fact, it is one of the most desirable residential sections of the city of Detroit. While it is true that there have been departures made from the original restriction of a one family residence, nevertheless there has been no such substantial change in the structure of the buildings as is contemplated by the defendant in the erection of a 24-family apartment building on a single lot. We take it it needs no argument to demonstrate that the erection of such a building would destroy the privacy of the neighborhood and make it much less desirable as a residential district, and if such a flagrant violation of the building restrictions imposed on this lot were permitted, the practical result would be the cancellation of all the restrictions imposed upon the entire subdivision. We are of the opinion that there have been no such facts shown as to estop the plaintiffs from insisting upon a compliance with the restrictions imposed on the lot in question, which the defendant purchased with full knowledge thereof. Various authorities from other jurisdictions are cited by counsel for appellant to sustain their contention, but the legal question here involved has so recently had our attention that it is only necessary to cite our own decisions to sustain the conclusion here arrived at. See Moore v. Curry, 176 Mich. 456; Schadt v. Brill, 173 Mich. 647; Misch v. Lehman, 178 Mich. 225; Stewart v. Stark, 181 Mich. 408; Casterton v. Plotkin, 188 Mich. 333; Sherrard v. Mur [685] phy, 193 Mich. 352; Davison v. Taylor, 196 Mich. 605; Andre v. Donovan, 198 Mich. 256. It is our conclusion from this record that the erection of the structure contemplated by the defendant would seriously injure the property of the plaintiffs, and under the existing conditions the result reached by the circuit judge was clearly equitable and right. His decree is therefore affirmed, with costs. Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ.,- concurred.