Feldman v. Court , 5 Mich. App. 160 ( 1966 )

5 Mich. App. 160 (1966) 146 N.W.2d 99

FELDMAN
v.
COURT.

Docket No. 338.

Michigan Court of Appeals.

Decided November 22, 1966. Rehearing denied December 29, 1966. Leave to appeal denied March 14, 1967.

John H. Yoe and Thomas P. Casey, for plaintiffs and intervening plaintiffs.

Cross, Wrock, Miller, Vieson & Kelley (George D. Hatie, of counsel), for defendant.

William J. McBrearty, for intervening defendants.

Leave to appeal denied by Supreme Court March 14, 1967. See 379 Mich 754.

J.H. GILLIS, P.J.

This is a suit for declaratory judgment requesting the court to adjudge that the property in question is restricted in its use to the erection of single family dwellings thereon. Plaintiffs and intervening plaintiffs are the owners of lots in the subdivision wherein the defendant Andrew Court's property is located. Defendant Court seeks to erect a supermarket on a portion of his property. Intervening defendants are other property owners in the subdivision who favor defendant Court's plan to erect the supermarket.

The trial court ruled that the restrictive covenant was extinguished by virtue of the failure to file notice of alleged restrictions pursuant to the Michigan marketable title act. CL 1948, § 565.101 et seq., as amended (Stat Ann 1953 Rev and Stat Ann 1965 Cum Supp § 26.1271 et seq.).

In 1893 a large parcel of land was platted which was entitled "Addition to Park Subdivision." Said land was bounded on the north by Mack avenue and the south by St. Paul avenue in the city of Detroit. Within those boundaries it encompassed both sides of Seminole, Iroquois, and Burns avenues. The subdivision was laid out in blocks but the blocks were not divided into residential lots. Thereafter lots were deeded out within the blocks by metes and bounds description until 1938 when a portion of the subdivision was resubdivided via an assessor's plat and each of the blocks encompassed in the assessor's plat was divided into a number of lots. The area covered by the Addition to Park Subdivision, plus some other adjacent land, comprised what is now commonly referred to as Indian Village. Subdivision restrictions of record dating back to the 1890's provide: "The property shall be restricted to single residences only." Defendant Court contends the restrictions are no longer effective because there has been a change in the neighborhood from that which was originally contemplated in the restrictive covenant, that the restrictions to a large extent have been ignored, and that the restrictive covenant is extinguished by virtue of failure to file notice of alleged restrictions under the Michigan marketable title act, supra.

The trial court was furnished with an extensive array of exhibits composed of photographs and diagrams of each area of the subdivision fronting on Mack avenue and of the surrounding neighborhood. In addition, exhibits covering the entire southern area of Indian Village along Jefferson avenue were submitted. Numerous, exhaustive briefs were filed by each of the parties covering the issues presented. The trial judge viewed the subdivision and neighborhood and filed a written opinion with extensive findings of fact contained therein. While this case is heard de novo in our Court, we find the record fully supports the factual findings of the trial judge and, for the sake of brevity, we summarize them as follows: Within the subdivision there have been numerous violations of the restriction in question. There are doctors' offices, public schools, playgrounds, churches, church parking lots, used car lots and commercial stores. In the immediate neighborhood, on the north side of Mack avenue across from the property, the area is completely commercialized with stores, garages, gasoline filling stations and a storage garage.

While there are numerous cases covering the pertinent issues involved, we would like to comment on but three of these cases. The first is Taylor Avenue Improvement Ass'n v. Detroit Trust Co. (1938), 283 Mich 304, and involves property similarly situated to the property in the instant case. The property in the Taylor Case was located on Woodward avenue, a busy thoroughfare. The property herein is situated on Mack avenue, likewise a busy thoroughfare. The properties involved in both the Taylor Case and in the case at bar are not desirable for dwelling house purposes. If the restrictions were maintained, the lots would be of little value to the owners. Due to changed conditions on both Woodward avenue in the Taylor Case and Mack avenue in the instant case, the property could not be developed residentially and damage would not result to the subdivision if the property was used for commercial purposes.^[*]

The second case is Morgan v. Matheson (1961), 362 Mich 535, which involves the same subdivision as in the Taylor Case. In Morgan, supra, the Court declined to permit the use of property in the subdivision for commercial purposes. The factual distinction between the two cases is readily apparent. In Morgan, supra, the lots involved in the litigation did not front on Woodward avenue but on Taylor avenue, a residential street. With three exceptions, there was no evidence that residential lots within the subdivision were used for commercial purposes although there was a showing that the restriction requiring the utilization of the property for residential purposes had been violated extensively in one respect, namely, that single residences were expanded into rooming houses. The restriction was not abandoned altogether but only pro tanto and the basic character of the subdivision remained residential.

In Gomah v. Hally (1962), 366 Mich 31, the Court went beyond the subdivision subject to the restriction involved in the litigation and considered the neighboring area and from this determined that the intent of the original restrictor could not feasibly be carried out within the subdivision due to changed conditions. The Supreme Court stated at p 34:

"There has been a definite change in the neighborhood from that which was originally contemplated in the restrictive covenant. * * * This Court has not hesitated to remove validly imposed restrictions to residence use when there has occurred extensive neighborhood changes."

See Dipboye v. Acchione (1958), 351 Mich 550, and Altese v. Neill (1965), 1 Mich App 437.

The neighborhood changes above alluded to are not confined to the particular area subject to the covenant in question. Chancellors both in this jurisdiction and others have historically searched the surrounding neighborhood to assist them in determining whether eradication of servitudes or covenants should be granted on the basis that they are unduly burdensome and of no value to dominant owners. See Pollack v. Bart (1953), 202 Md 172 (95 A2d 864), Waldrop v. Town of Brevard (1950), 233 NC 26 (62 SE2d 512), and Taylor, supra.

There has been an extensive neighborhood change in the instant case. We also find that there are numerous lots within the subdivision used in violation of the restriction in question including 4 commercial store units and two used car lots on Mack avenue. For these reasons we agree with the trial court's decision that the restrictions are no longer enforceable as to the particular property involved on appeal.

"Each case must necessarily be determined on its own facts, and each case must stand by itself as the facts in each case are different." Harrigan v. Mulcare (1946), 313 Mich 594, 596.

In view of our finding it is not necessary for this Court to pursue the issues presented involving the Michigan marketable title act, supra.

Judgment affirmed. Costs to appellees.

HOLBROOK and McGREGOR, JJ., concurred.

NOTES

[*] The city of Detroit, through the city plan commission and common council, rezoned the property in the instant case from residential to commercial. The zoning was made contingent upon the property being developed in accordance with specific plan set forth in defendant's exhibit 10 requiring a protective 6-foot masonry wall, green belt, ample parking facilities, adequate loading areas and entrances and exits limited to Mack avenue.