Kaczynski v. Lindahl , 5 Mich. App. 377 ( 1966 )

5 Mich. App. 377 (1966) 146 N.W.2d 675

KACZYNSKI
v.
LINDAHL.

Docket No. 1,175.

Michigan Court of Appeals.

Decided December 8, 1966.

Santini, Jacobs & McDonald (Jack T. Jacobs, of counsel), for plaintiffs.

F. Lloyd Symmonds, for defendants.

T.G. KAVANAGH, J.

This was an action to remove a condition which had been inserted by defendants-appellees in a deed to land subsequently acquired by plaintiffs-appellants.

The restriction contained in appellants' deed provides for a reversion to the grantor or his heirs if the grantee, his heirs or assigns, keep for sale or permit liquor to be sold on the premises or use the premises for a dance hall or tavern and thus is a condition subsequent.

Appellants bought the property in 1960 and were aware of the restriction. They own and operate a gasoline station, grocery store, restaurant and motel at an intersection of two highways in a sparsely populated resort area. In May of 1965, the Michigan Liquor Control Commission issued a "take-out" license to appellants who have thus far made no attempt to sell.

At the hearing, appellee stated that all land sold by him in the past 15 years contained the same restriction with the exception of one piece of property in Iron City itself. Appellee stated that he inserted the restriction in the conveyances due to his personal and religious conviction against the sale of liquor as well as to enhance the salability of the retained land which he wanted to keep residential in nature.

The trial court upheld the restrictions as valid and denied the relief sought by plaintiffs who now bring this appeal.

Appellants first urge upon us that the restriction in their deed is invalid for two reasons, the first being appellees' purpose for inserting the restriction and the second that it is an unreasonable restraint upon their use of the premises.

We find this contention to be without merit. In addition to their personal beliefs, the appellees herein inserted the restriction with a view towards increasing the aesthetic and salable value of the remaining property. Such purposes are not illegal and are not reasons for declaring a restriction invalid. Nor is the restriction an unreasonable restraint on the use of the premises. There is nothing unreasonable in appellees' disposing of their property for such purposes and indeed it is their right so to do. See Chippewa Lumber Co. v. Tremper (1889), 75 Mich 36 (4 LRA 373, 13 Am St Rep 420); and Jenks v. Pawlowski (1893), 98 Mich 110 (22 LRA 863, 39 Am St Rep 522).

By statute,^[1] courts may wholly disregard a condition annexed to a grant of land that is merely nominal or that evinces no intention of actual or substantial benefit to the party in whose favor it is to be performed. A restriction against the sale of liquor is not such. See Smith v. Barrie (1885), 56 Mich 314 (56 Am Rep 391); and Watrous v. Allen (1885), 57 Mich 362 (58 Am Rep 363).

A careful reading of the authorities cited us by appellants fails to convince us that their position is tenable. In the case of Grant v. Craigie (1940), 292 Mich 658, the court did not refuse to enforce a restriction in a deed, but rather, refused to imply the existence of a restriction in the deed. However, the court clearly stated at pp 661, 662 that,

"It is universally accepted that a grantor in conveying property may impose restrictions as to the use thereof. The only limitations on this right are that it shall be exercised reasonably, with due regard to public policy, and without creating any unlawful restraint of trade. A covenant not to use premises for the purpose of vending spirituous liquors is not contrary to public policy and is valid and enforceable."

Appellant last contends that the sale of beer and wine on the premises for consumption off the premises would not violate the restriction. We do not agree. The language of the condition is clear. The condition is "against the sale of intoxicating liquors" and provides for a reversion if the appellants "shall keep for sale or permit liquor to be sold."

The Michigan liquor control act^[2] defines beer and wine as classifications of alcoholic liquor and this has been held to be "intoxicating." See People v. McCoy (1922), 217 Mich 575. In answer to this very contention which appellant now raises, the court in Grandmont Improvement Association v. Liquor Control Commission (1940), 294 Mich 541 stated (pp 544, 545):

"The language used in creating the restriction was plain, simple and unambiguous. To adopt appellant's argument would result in an unwarranted modification of the language used."

We therefore affirm the decision of the trial court. Appellees may tax their costs.

BURNS, P.J., and FITZGERALD, J., concurred.

NOTES

[1] CL 1948, § 554.46 (Stat Ann 1957 Rev § 26.46).

[2] CLS 1961, § 436.2 (Stat Ann 1957 Rev § 18.972).