(dissenting). I am unable to agree with my Brother Brooke. As he states, the original *464deed to lot 49 of the subdivision in question contained the restriction:
“It is further expressly understood that the said above premises are subject to the building restriction now existing on said subdivision, and that the said party of the second part assumes all obligations in conformity with said building restriction.”
In Tillotson v. Gregory, 151 Mich. 128 (114 N. W. 1025), the subject of the building restriction imposed upon lots in this subdivision was considered. It was said:
“A careful reading of the tabulation made of the conditions in the deeds will not disclose a general, uniform, and certain plan of improvement, except that these lots were to be used for residence purposes, as distinguished from business pusposes, and the building line was to be 20 feet from the street line, and the houses were to cost not less than $2,500 and $4,000, according to location.”
This ruling supports the injunction against erecting stores upon lot 49, which affords complainants relief from the injury immediately threatened.
However, I agree that the force and effect of the instrument made in October, 1904, by some of the lot owners, is involved and ought to be determined, and upon that point am of opinion that the covenant contained in the instrument is not binding upon the present owner of lot 49. In the first place, the instrument intended to apply to 50 lots was executed by the owners of but 26 lots. In and of itself, therefore, it would not, and could not, accomplish the purpose therein stated, which was—
“ That for the purpose of making and maintaining said Chandler avenue as a desirable residence street for private families, we do hereby agree, for the consideration hereinbefore mentioned, that we nor either of us will erect or cause to be erected any other than a single dwelling house on each lot planned and designed to be occupied as a dwelling for a single family; that we will not build such dwelling house nearer than twenty (20) feet from the Chandler avenue street line, said twenty (20) feet not to include the porch of such dwelling house, nor nearer than *465five (5) feet from the side line of our said lots, so that a distance of ten (10) feet between the buildings shall be maintained on said Chandler avenue; that said buildings shall be built of either brick, stone or frame, and shall cost at least the sum of twenty-five hundred dollars ($2,500).”
In fact, the record discloses that Chandler avenue is not a street of single dwellings, and not one on which the dwellings erected are uniformly distant from street and side lines. In the second place, the instrument creates no easement upon lots, and is not binding upon the assigns of those who executed it. It contains a covenant, which is simply a contract, and is purely personal to those executing the instrument, relating only to their own acts. Easements —incumbrances on land — must be created by apt words, and a perpetual easement is not to be inferred from language clearly consistent with a mere personal undertaking.
“ In construing the covenant, it is to be observed that the grantor, although speaking for himself and his successors, to the grantee and his successors, confined the restriction to himself alone, by agreeing that he, the grantor, would neither erect nor cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. No doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor, and purports to restrict his action only. While the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to his own acts. Clearly the inconsistency cannot be dispelled . by subordinating substance to form, or by holding that the actual agreement is of less importance than the capacity in which it was made.”
This is the language of the court of errors of New York in construing a covenant contained in the very deed of the land. Clark v. Devoe, 124 N. Y. 120, 124, 125 (26 *466N. E. 275, 27 Am. St. Rep. 652). The reasoning of the court in that case is sound, is applicable here, and the case is authority for holding that the agreement of October, 1904, does not create an easement, and that lot 49 is subject only to the general restriction stated in Tillotson v. Gregory.
McAlvay, J., concurred with Ostrander, J. Bird, J., did not sit.