McGregor v. Peabody , 240 Mich. 425 ( 1927 )

McDonald, J.

This suit was brought to restrain the erection of a dwelling house and garage in violation of certain building restrictions. The property involved is located in one of the finest residential districts in the city of Detroit. The plat was owned and developed by the North Woodward Land Company, a corporation. The plat and all deeds contain a covenant restricting buildings to one single dwelling house, together with any necessary outbuildings, the first story of the building to be either of stone, brick, or hollow tile with cement face construction. It was also provided that plans for proposed buildings should be submitted for approval to the North Woodward Land Company. There were other restrictions, but as they have no application to the questions here involved we need not mention them. These restrictions are contained in the deed to the defendants. Before beginning the erection of any buildings the defendants presented their plans to the North Woodward Land Company and secured its approval. As the building operations progressed and it became apparent that the first story was being built of brick veneer instead of solid brick, and that the garage was to be attached to the house instead of being placed at the rear of the lot, the plaintiffs filed this bill to enjoin the construction. On the hearing the court found that the use of brick veneer was a violation of the restriction, but that it contained nothing forbidding the erection of a garage at the rear of and connected with the house. The defendants are satisfied with the decree and have changed their building to conform to it, but the plaintiffs, feeling aggrieved, have appealed.

The only question presented by the record is whether the erection of a garage attached to the main building constitutes a violation of the restrictive covenant.

The defendant Henry N. Peabody testified:

“I am building my garage of solid brick on the back of the house as a convenience to my own family, especially my wife and myself coming in at night. We have had garages in the back when it has been almost hazardous to come around the dark alleys at night, nowadays especially, and we went to considerable outlay and expense and great trouble in planning our house to have our house where it is shown on the plan. We also heat the garage from the main heating plant in the house, which shortens the heating distance very much.”

When a garage is attached to the home the building code requires that it be constructed of solid brick and have a fire wall between it and the house. The proposed garage complies with the provisions of the building code; and it does not seem to violate any of the restrictions adopted by the subdividers. The restrictions permit the erection of a single dwelling house, with any necessary outbuildings. In disposing of the issue, the trial court said:

“There isn’t any provision of this condition, of this building restriction, that says that the outbuilding must be placed on the alley line or near the alley line or on the side line or near the side line or anything of the kind. The only provision is, ‘together with any necessary outbuildings.’ They have to be necessary outbuildings connected with the house. If that is true, it seems to me that just as came out of the testimony of somebody here, the garage might be placed within a foot or two of the house or four or five feet away or next to the house, and if it was placed there the very same objection would apply as having it actually roofed over as a part of a house with a fire wall 'between and a roof extending over. Not that there is any practical difference.”

The trial court was right. There is nothing in the restrictive covenant forbidding the construction of a garage as a part of a dwelling house. But the plaintiffs say that when this restriction was adopted it was the custom to build garages on the rear of the residence lots; that this custom was followed by the various, grantees and is binding on the defendants. Conceding this custom, there is no proof that the restriction was imposed pursuant to any general building plan as to garages or with the purpose to restrict the building of garages to the alley line of the lots. If there was any such general scheme the grantor Who imposed the restriction may be supposed to have adopted it. But there is no evidence that there was any such plan in the minds of the subdividers of this plat. Customs and conditions have changed since this plat was first put on the market. For economical reasons of heating, for protection and convenience, it is now the custom in cities to build garages as a part of the dwelling. It is a modern method of construction and is followed in many of the finest residential districts. The record presents no sufficient reason for forbidding the erection of this garage as proposed by the defendants.

The decree of the circuit court is affirmed, with costs to defendants.

Sharpe, C. J., and Bird, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred.