Rich v. Isbey

This suit is one to enforce restrictions as to erecting and maintaining fences and hedges in Palmer Woods subdivision in Detroit. From the decree entered in the circuit court, defendants appealed and plaintiffs cross-appealed.

Palmer Woods subdivision lies adjacent and to the west of Woodward avenue. It is a little more than a half mile in length and a little less than a half mile in width and contains 368 lots. Plaintiffs' home is on lot 329 which fronts southeasterly on the curve of Argyle Crescent. This is near the extreme northwesterly corner of the plat. Defendants own the three lots next westerly and southerly of plaintiffs' lot. These three lots also front on the curve of Argyle Crescent. Defendants' dwelling is located on lot 326 and their lots 327 and 328 lie between lot 326 and plaintiffs' lot 329. Defendants have erected a 6-foot woven wire fence from the rear of their lot 328 along their easterly boundary line to a point 50 feet from the street line. From the end of the wire fence to the street and southwesterly along the street line of lot 328 defendants have a hedge which is 6 or 7 feet high. Defendants assert the right to maintain this fence and the hedge on the ground, among others, that the restrictions pertaining to fences and hedges "have been abandoned and waived, and that said abandonment and waiver were open, visible and notorious at the time of the purchase by plaintiffs of their property in said subdivision." The claimed abandonment and waiver are denied by plaintiffs.

All or nearly all of the deeds of the lots in this subdivision from the corporate owner of the plat contain uniform restrictive provisions; and these provisions are in the deeds under which these litigants took title. The deeds recite that these restrictive provisions shall run with the title to the land. The particular restrictions involved in this suit read:

"All boundary lines shall be designated by hedges or woven wire fences with iron posts of a pattern to be approved by said first party and not to exceed 4 feet in height. No fence, hedge or wall shall be erected between the street and the building line of said lot nor on the side lines for a distance of 50 feet back from the front lot line."

The plat of this subdivision was recorded in 1915. Plaintiffs purchased their property in May, 1936. Defendants became the owners of their lot number 328 in February, 1937; but they had owned and occupied their present residential property for some time prior to plaintiffs' purchase of lot 329. The record contains considerable testimony touching the time and the manner of violations in this subdivision of the quoted restrictions, particularly the restriction pertaining to hedges. Exhibit A offered and received in evidence is a copy of the plat of this subdivision on which by appropriate markings is indicated the location and extent of restriction violations. From this exhibit one easily visualizes the extent to which the restrictions have been ignored. It appears from the record these violations antedated plaintiffs' purchase of their property. Further, the following pertinent facts as to the abandonment of the quoted restrictive provisions appear in the record. Within a radius of 500 feet from the front of plaintiffs' lot there are at least seven violations of the restriction against maintaining hedges, exclusive of those on defendants' property. In what may reasonably be considered defendants' immediate neighborhood, there is a large number of violations; and violations extend more or less throughout the entire plat. From exhibit A it appears there is not a single block on the plat on which there is not some violation of this restriction. At what seems to be the main entrance to the plat there is a so-called hedge extending along the front of 11 consecutive lots. Some portions of this so-called hedge are 18 feet in height. In the plat as a whole, hedges in violation of the quoted restriction are maintained in front of approximately 63 lots and on the side lines of approximately 100 lots. Of the 368 lots in the subdivision, 137 are unimproved. Thus the large proportion of restriction violations on the remaining 231 improved lots appears.

From the foregoing the only conclusion to be reached is that during the years intervening between the inception of the development of this subdivision and the time when plaintiffs purchased their property the quoted restriction as to the maintenance of hedges on the front lines and side lines of the lots has been wholly subverted and abandoned by repeated and continued violations. Hedges are so numerous and so generally prevalent throughout the subdivision that knowledge of such abandonment would result from the most casual observation. Unquestionably many of these hedges have been maintained for such a period that no one could now successfully complain. Violations have been so general that it seems inequitable to permit the owners of many of these parcels to maintain hedges but to say to their neighbors, "You cannot." Miller v.Ettinger, 235 Mich. 527. Because of the abandonment of the pertinent restrictive provision plaintiffs are not entitled to a decree requiring defendants to remove the hedge involved in this suit.

As above stated the woven wire fence erected by defendants on the division line between their property and that of plaintiffs is 6 feet in height. But the record discloses that by grading their lot plaintiffs have raised the surface thereof to a level, as Mr. Rich testified, "1 1/2 to 2 feet." Because of this change in surface levels, the wire fence erected by defendants on their property is, as a matter of fact, but slightly in excess of the height permitted when measured from the surface level of plaintiffs' property. Surely such a slight deviation could not materially affect plaintiffs' property for residential purposes. We think it is too petty to justify granting equitable relief, which at most would only result in lowering the height of the fence a fraction of a foot. The maxim: "De minimus non curat lex," should be applied here, as it was in Ungrich v. Shaaf, 119 App. Div. 843 (105 N.Y. Supp. 1013).

The decree in the circuit court required defendants to reduce both the wire fence and the hedge between lots 328 and 329 to a height not exceeding 4 feet above the surface of plaintiffs' lot and the front line hedge to a like height. Since the restriction as to hedges has been wholly nullified by repeated and continued violations throughout the subdivision, there appears in this record no justification for the provision in the decree restricting the height of defendants' hedge to 4 feet.

For the reasons above indicated we are constrained to hold that the decree entered in the circuit court must be reversed. A decree will be entered in this court dismissing plaintiffs' bill of complaint, with costs of both courts to defendants.

BUSHNELL, POTTER and CHANDLER, JJ., concurred with NORTH, J.