But after a careful review of this record and the able briefs of counsel we find we cannot fairly say that on the evidence before him the chancellor below reached a wrong result either on his facts or his law. The situation here is not essentially unlike that which confronted us in Austin v. Van Horn, 255 Mich. 117. See, also, Golden v. Davis, 266 Mich. 7. The decree below must accordingly be affirmed, with costs.
There was no abuse of discretion in modifying the permanent injunction, in effect for 23 months, such modification being predicated upon findings of fact establishing mootness of the original issues, full compliance in the meantime, and the determination that a refusal to modify would be in effect a prejudgment of subsequent conditions. 43 C.J.S., Injunctions, § 198; People's Bank v. McCarthy, 210 Iowa 952, 231 N.W. 487; Golden v. Davis, 266 Mich. 7, 253 N.W. 195; Polk v. Holland Texas Hypotheek Bank, Tex.Civ.App., 66 S.W.2d 1112; Dolan Dining Co. v. Cooks Assistants' Union, 126 N.J. Eq. 445, 9 A.2d 303; Stacy v. Caudill, 272 Ky. 841, 115 S.W.2d 316; Pacific Gamble Robinson Co. v. Minneapolis St. L. R. Co., D.C., 92 F. Supp. 352; Milk Wagon Drivers' Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132 A.L.R. 1200; Wortex Mills, Inc. v. Textile Workers Union, 369 Pa. 359, 85 A.2d 851. The decree of modification is as follows:
Nor does the mere fact that this subdivision is now largely surrounded on 3 sides outside the subdivision by business and commercial use, particularly as applied to the lots on Schaefer road, in itself furnish a necessary ground for denying plaintiffs the right to enforce the restriction. Misch v. Lehman, 178 Mich. 225; Bohm v. Silberstein, 220 Mich. 278; Boston-Edison Protective Ass'n v. Goodlove, 248 Mich. 625; Golden v. Davis, 266 Mich. 7; Spence v. Kuznia, 307 Mich. 219; Mack Outer Drive Improvement Association v. Merrill, 317 Mich. 24. But equity may grant relief where a breach of a restriction has not resulted in subversion of the original scheme of development or in a substantial change of neighborhood, when it is shown that lot owners will be seriously damaged by the violation. Voorheis v. Powell, 261 Mich. 378 (85 ALR 932).
In Austin v. Van Horn, 255 Mich. 117, not only was the condition of the entire neighborhood changed but the rights of innocent third parties were involved. In Golden v. Davis, 266 Mich. 7, it appears that the character of the subdivision itself had changed as a result of numerous violations of restriction within the subdivision. In the case of Taylor Avenue Improvement Association v. Detroit Trust Co., 283 Mich. 304, a gasoline service station had been built on a lot in a subdivision that was restricted to residential use. Plaintiffs sought a mandatory injunction to compel the removal of the service station.
On the other hand, we have not refused to modify restrictions where there has been a change in a neighborhood to such an extent that the modification will not damage the owners of the other lots in the subdivision. Windemere-Grand Improvement Protective Ass'n v. American State Bank of Highland Park, 205 Mich. 539; Frigo v. Janek, 237 Mich. 642; Austin v. Van Horn, 255 Mich. 117; Golden v. Davis, 266 Mich. 7. The situation in the present case is peculiar. It is claimed that some of the plaintiffs are not damaged because, as stated in Golden v. Davis, supra, they reside such a distance from the lot in question that they could not suffer more than a nominal injury, if any. A lot improved with a residence, owned by one of the plaintiffs in the instant case, is separated from lot 98 only by an alley.
The residences at the northwest and southwest corners of Second and west Euclid avenues are being used respectively for a beauty parlor and dressmaking establishment. A more detailed statement of the changes in the character of Second avenue is set forth in Golden v. Davis, 266 Mich. 7, wherein we held that one living at the corner of Third and Gladstone avenues did not suffer sufficient injury so as to complain of a violation of a restriction in the same subdivision, and on the same street but at the corner of Second avenue when at that point the character of the latter street had changed. Testimony showed that if an oil station were built opposite plaintiff's property the rental value, particularly of the many apartments fronting on west Euclid avenue, would be very much depreciated and those seeking an abode in an apartment in a residential district would object to the noise, glare of lights, etc., incident to an oil and gas station.
The restriction was upheld and the injunction granted, on the ground that the lots in question were part of an exclusive residential district in which the restrictions had always been observed, notwithstanding the fact that other portions of the boulevard outside the subdivision were not subject to restrictions. Defendants also rely on Golden v. Davis, 266 Mich. 7, where we dismissed the bill of complaint on facts entirely different from those in the case at bar, again approving of the decision in Boston-Edison Protective Ass'n v. Goodlove, supra. The owner does not necessarily waive the right to insist on the rigid enforcement of the restrictions in a particular district by failure to insist upon their observance in some other blocks or streets of the same subdivision. Home Development Co. v. Omeleanchik, 253 Mich. 568.