Weiss v. Zack

The parties are concerned chiefly with securing a judicial construction of the building restrictions imposed upon this subdivision. Defendant says he is not erecting any building on the northerly 25 feet of the lot, and, while admitting his intention to make an entrance to the garage from Burlingame, attempts to justify his action in so doing by the fact that 25 feet off the northerly side of such lot has been acquired by the city, and since 1919 has been used for street purposes; that there being no record restrictions against the remainder of the lot, it follows that there is now nothing to prevent the erection of a separate and distinct building facing and having an entrance on Burlingame.

In construing building restrictions the intent of the restrictor must be considered. Tabern v. Gates, 231 Mich. 581. Here it is plain. Twelfth was and is a business street, while Burlingame avenue was and is strictly residential. To secure uniformity the restrictor provided that no building of any sort should be erected on the north 25 feet of these lots. An open space, 25 feet on Twelfth and about 105 feet on Burlingame, was thereby assured, and this space was not to be used as an alley, entrance, or exit to any building on the remaining portion of the lot. But even on such of the lot where buildings were permitted it was provided they must face on Twelfth, while defendant's proposed building would face on Burlingame.

While perhaps literally it may be said that there will be no door or opening into the garage which will be on the restricted portion of the lot now owned by the city, still the side on Burlingame will be its front, it will face on this avenue, and it must be entered therefrom. In fact there will be an automobile garage on this residential street, which was to be kept free and clear from all business buildings. To permit this would be to entirely subvert the manifest intention of the restrictor, and make Burlingame a business street. The 25 feet sold to the city is the identical piece of ground it was before sale, notwithstanding the fact it has become part of the street. That defendant no longer is the owner in no way alters the situation. The erection of the building defendant proposes is no less a violation of the restriction now than would a like construction have been before the street was widened. Defendant's contention, though ingenious, must be held untenable. He concedes his conduct is in violation of the decree. He was therefore properly adjudged to be in contempt.

The writ of certiorari is dismissed, and the case remanded to the trial court for such further action as may be necessary and proper. Plaintiffs will recover costs.

BIRD, C.J., and SHARPE, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred.