A rehearing was granted on the petition of the defendant. In the petition, and also in the argument on rehearing, defendant claims that the court overlooked certain important testimony upon which the defendant bases his defense. This is the testimony of Mr. Clark, found on pages 71 and 72 of the transcript and which is as follows:
"Mr. Clark: I was familiar with the fact that in the Mitchell Chevrolet building they had access through the building from the front to the rear. Mr. Stern said to me that in Mr. Polis' building the only entrance into their work shop where they could sell gasoline was a door from the side street, which is Fourth street, and that they had to back out after they got in there; and he said that they would want to open up a front door so that they could pass through like they did in the Mitchell Chevrolet building. *Page 82
"The Court: What did you say about that?
"A. Well, I don't recall that I made any answer, because I was not protesting as to what he should do with his building so far as the structure or appearance was concerned. I was dealing only with the question of a public filling station in there.
"The Court: You didn't care if he did cut another door through there?
"A. Well, no."
Mr. Watson's testimony at page 184 of the transcript is as follows:
". . . He (Mr. Stern) asked me to go down and take a look at the building. We went down there, we were alone at first, and I think later on we were joined by Mr. Polis. And they pointed out some of the improvements they would like to have made, such as the cutting of doors, as I recall, in the front of the building, and after looking over the thing Mr. Stern and I went back to his office and he wrote a letter, addressed it to me, renewing his application for a filling station site."
We did not overlook this testimony but we considered that it was not important on the issues in the case. Watson was taken to the building by Mr. Stern and they said something to him about cutting a door in the front of the building. It was the defendant's building and it could make any improvements therein that it desired and the plaintiff could not object, so long as the defendant did not use the building for a forbidden purpose. The use of the premises for a public filling station was forbidden and in every conference between the plaintiff and the defendant, and the plaintiff and representatives of the defendant, the plaintiff made it clear that a public filling station would not be allowed. Mr. Clark said: "I was familiar with the fact that in the Mitchell Chevrolet building they had access through the building from the front to the rear. Mr. Stern said to me that in Mr. Polis' building the only entrance into their work shop where they could sell gasoline was a door from the side street, which was Fourth Street and they had to back out after they got in there; and he said that they would want to open up a front door so that they could pass through it like they did in the Mitchell Chevrolet building." That is the request that was made to Clark by Mr. Stern, in behalf of the defendant. They already had a door on the west side into the service part and wanted a door in the *Page 83 front so that they could pass through like they did in the Mitchell Chevrolet building, but as soon as the defendant got permission (exhibit 15) authorizing the servicing of cars, as in the Mitchell Chevrolet building and the Moorhead Company building at Moorhead, they moved the entire front wall of the first story back and installed therein a public filling station. The entire end of this space on the west is open, except the northwest corner support and the entire south is open, except the supporting pillars and this space is used for no purpose except as a public filling station. Neither the plaintiff nor this court can say that the defendant must close this space, but the court can say, and does say, that this space cannot be used for a public filling station and if the defendant wants to use it for servicing cars in his garage, it will be necessary to reconstruct it in such a way that it cannot be said to be a public filling station.
On re-argument counsel for the plaintiff stated that if the filling station signs were removed, the open space at the west end enclosed and the space on the south enclosed, except a ten foot door, giving an opening into the garage on the south so that cars could pass in from the south and out through the door on the west mentioned in the conversation between Mr. Clark and Mr. William Stern, there would be no objection on the part of the plaintiff.
The defendant cannot be required to change the appearance of his building in any way, but if he wants to use this property to service cars brought to his garage, it will be necessary for him to change the outside appearance of the building so that it will not have the appearance of a public filling station.
The decision as rendered is adhered to.
BIRDZELL, Ch. J., and NUESSLE, CHRISTIANSON and BURR, JJ., concur. *Page 84