206 N.W. 496
Defendant Christina McLean owns the west 35 feet of lot 86 in the Green Lawn subdivision at the northeast corner of Collingwood avenue and Second boulevard in Detroit, where she and her husband John A. McLean reside in a dwelling house fronting Collingwood avenue.1 In 1891 the subdivision was platted with lots on Collingwood avenue intended exclusively for residence purposes, and all 91 such lots now have residences erected on them.2 Robert J. and Joseph R. McLaughlin, who owned the Collingwood avenue lots, conveyed several groups of lots in 1892 and 1893 subject to restrictions that only residences costing at least $2,500 could be built and that they must front on the avenue.3
The McLaughlins conveyed lot 86 to predecessors in defendants' title by a deed dated September 7, 1893, that mentioned no restrictions.4 In 1910 or 1911 John McLean purchased the lot on contract, completed the partly built dwelling already present, and has since occupied it with his wife.5 At the time of purchase McLean reviewed an abstract showing the subdivision and its many lots, observed the expensive residences on the street all conforming to a uniform residential character, and was informed by his grantor that the lot carried no restrictions.6
The McLeans started to erect a gasoline filling station at the rear end of their lot.7 They and their contractor were enjoined by decree from doing so.8 The defendants appealed that decree to the Supreme Court of Michigan.9
Whether defendants' lot is subject to a reciprocal negative easement?10
If the owner of two or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold. For want of a better descriptive term this is styled a reciprocal negative easement. It runs with the land sold by virtue of express fastening and abides with the land retained until loosened by expiration of its period of service or by events working its destruction. It is not personal to owners but operative upon use of the land by any owner having actual or constructive notice thereof. It is an easement passing its benefits and carrying its obligations to all purchasers of land subject to its affirmative or negative mandates. It originates for mutual benefit and exists with vigor sufficient to work its ends. It must start with a common owner. Reciprocal negative easements are never retroactive; the very nature of their origin forbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring land sold by a common owner. Such a scheme of restrictions must start with a common owner; it cannot arise and fasten upon one lot by reason of other lot owners conforming to a general plan.11
Yes. The McLaughlins were common owners of the Collingwood avenue lots.12 In December 1892 they conveyed lots 37 to 41 and 58 to 62 subject to restrictions that nothing but residences shall be erected upon said premises and that residences shall front on the avenue.13 They conveyed additional lots in July 1893 with identical restrictions.14
Because title to lot 86 remained with the McLaughlins during both conveyances, the restrictions placed on the sold lots fastened a reciprocal negative easement upon the retained lot 86 for the benefit of the restricted parcels.15 The subdivision was planned strictly for residence purposes.16 All 91 lots on Collingwood avenue are now occupied by residences.17 This confirms that the common owners' scheme attached the easement to lot 86 while it was still in their hands.18
Defendants' lot therefore remains subject to the reciprocal negative easement that limits its use to residential purposes and bars construction of the gasoline filling station.19
Whether defendants purchased the lot with actual or constructive notice of any reciprocal negative easement?20
A reciprocal negative easement is not personal to owners but operative upon use of the land by any owner having actual or constructive notice thereof.21 The restrictions were upon defendants' lot while it was in the hands of the common owners.22 The abstract of title to defendants' lot showed the common owners.23 The record showed deeds of lots in the plat restricted to perfect and carry out the general plan and resulting in a reciprocal negative easement upon defendants' lot and all lots within its scope.24 Defendants and their predecessors in title were bound by constructive notice under our recording acts.25 The original plan was repeatedly declared in subsequent sales of lots by restrictions in the deeds.26 While some lots sold were not so restricted the purchasers thereof, in every instance, observed the general plan and purpose of the restrictions in building residences.27
Yes. John McLean purchased lot 86 on contract in 1910 or 1911, at which time a partly built dwelling already stood on the property.28 He examined an abstract of title that disclosed the subdivision and revealed that lot 86 had ninety-seven companion lots.29
From the street he could not avoid noticing the expensive dwellings that gave every lot a strictly uniform residential character.30 That visible conformity to a general plan put him to inquiry beyond merely asking his grantor whether restrictions existed.31 The least inquiry would have disclosed the recorded deeds by which the McLaughlins had restricted neighboring lots, thereby establishing the reciprocal negative easement that already burdened lot 86.32
Defendants therefore took title with constructive notice of the reciprocal negative easement and are bound by its prohibition against non-residential uses.33