Roberts v. Congregation Shaarey Zedek , 242 Mich. 381 ( 1928 )

Plaintiffs, owners of lots in Dexter Boulevard Heights subdivision in Detroit, seek to restrain the defendant, an incorporated orthodox Jewish Congregation, from erecting a synagogue on property in the subdivision. Plaintiffs claim all of the property in the subdivision is restricted to use for dwelling purposes; that the erection of this synagogue with a seating capacity of approximately 2,000 people will violate the building restrictions applicable to the entire subdivision, and constitute such an infringement of plaintiffs' rights as to entitle them to enjoin its erection. The applicable building restriction alleged in the bill of complaint, admitted by the answer and proven by the testimony, is:

"Any building erected upon said property shall be fifteen feet from the front line of said property and not less than one and one-half stories with fourteen foot posts in height, and cost at least $2,500, and no shanties or sheds shall be erected upon said premises to be used for dwelling purposes."

There was decree for defendants and plaintiffs appeal.

Plaintiffs introduced testimony, subject to objection, tending to show that the erection of the synagogue would diminish the value of the adjacent property; that some of the purchasers of property in the subdivision bought with the idea that its use was restricted to residential purposes. It is not disputed that the restrictive clause in the deeds affecting this property was prepared by Mr. A.C. Stellwagen, an able lawyer, and no doubt its language defined with precision the intention of the grantor.

Defendants purchased the property in this subdivision which it is proposed to use as the site for the erection of the synagogue, subject to the restriction above quoted, and the sole question is whether defendants will, by building the contemplated structure upon their own property, violate the building restriction affecting it.

Restrictions on the use of real property ought not to rest in parol. Where building restrictions have been deliberately put in writing, in plain and unambiguous terms, they are so conclusively presumed to contain the whole agreement between the parties that parol evidence is inadmissible to contradict or vary their terms. Adair v. Adair, 5 Mich. 204 (71 Am. Dec. 779). Witnesses cannot be permitted to speculate on omitted but unexpressed intentions of the parties. Tompkins v. Gardner Spry Co., 69 Mich. 58. The construction of such restrictions is a matter of law for the court. Johnson v. Cranage, 45 Mich. 14. There is nothing in the language of the restriction relied upon which prevents the erection by defendants of the proposed building.

The decree is affirmed, with costs.

FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred.