Opinion
08-01-1908
HYMAN et al. v. TASH.
George O. Vanderbilt and Adrain S. Appleget, for complainants. Fergus A. Dennis, for defendant.
Bill by Susie Hyman and others against Albert T. Tash. Decree for complainants, excepting complainant Vann.
George O. Vanderbilt and Adrain S. Appleget, for complainants.
Fergus A. Dennis, for defendant.
WALKER, V. C. The complainants and the defendant are owners of lots fronting on the easterly side of Witherspoon street in Princeton. The properties of all of the parties were part and parcel of a larger tract of land of which John Murphy, late of the borough of Princeton, died seised intestate, and which was afterwards sold off in building lots by his heirs at law. On December 7, 1894, Robert S. Murphy, attorney in fact for the heirs of John Murpby, deceased, sold and conveyed to William W. Nixon a portion of the lands, and he Nixon, on October 23, 1901, sold and conveyed the same premises to the defendant, Albert T. Tash. In the deed from Murphy to Nixon is the following restriction: "Second. That no dwelling shall be erected upon this lot except those facing upon said Witherspoon street, and the front line of said dwelling house shall not be less than fifteen feet from said street, and said dwelling house shall be erected in the center of said lot hereby conveyed, and equal distant from the side line fences of the lot." The same identical restriction is contained in the deed from Nixon to Tash. The same identical restriction is to be found in the deeds of the complainants. The scheme of the original owners, the Murphy heirs, undoubtedly was to make the tract of laud abutting on Witherspoon street owned by them a residential section, but the testimony does not show that the grantees of the Murphys assented to the scheme or even knew of it. The defendant, Tash, in disregard of the restriction in his deed, and shortly before the filing of the bill and while occupying a dwelling house erected on his lot in practical conformity with the restrictions in his deed (the side lines being somewhat at variance with the restriction), commenced the erection of a frame building immediately adjoining the side line of his dwelling house on the southwest, and extending laterally from the dwelling to the line of the Hymans and out to the end, binding upon the easterly line of Witherspoon street. This building, at the time the injunction issued, was inclosed. It is one story high, and shuts off the view up and down Witherspoon street from the front porches and the windows in the first story, and to some extent, necessarily, the second story, of the houses of the complainants.
The defendant in his answer admits the erection of the building in question, and seeks to justify it under a claim of right. He says that the erection of the building is for store purposes only, and forms no part of his dwelling house and is entirely detached therefrom, and that he has therefore not done anything in contravention or breach of what he calls the "special covenants and stipulations in the conveyances under which he claims title." He also claims that the complainants have not built in strict conformity with the restrictions in their deeds, and insists that they have not built in the center of their lots. Neither has he done so. None of the lots run at right angles to Witherspoon street, but are deflected at some angle. The fronts of the buildings are parallel, or nearly so, with the street, hence the side lines of the buildings are not parallel with the side lines of the lots. It does not lie in the mouth of the defendant to criticise the complainants in respect of this feature of their building operations, for they are all practically alike. And, whether so or not, the defendant cannot successfully contend against the complainants in this regard if the violations of the restrictions be immaterial, and such as do not prevent the general plan relating to the street from being carried out, assuming that there be a general plan. Morrow v. Hasselman, 69 N. J. Eq. 612, 616, 61 Atl. 369.
A question raised in limine is whether the restriction is not directed solely against dwellings, in which case the building of stores and erection of buildings other than dwellings would not be prohibited. This question, in my judgment, is easy of solution. The neighborhood is a residential section, and undoubtedly the heirs of the Murphyestate never contemplated the erection of business buildings on Witherspoon street. The photographs offered in evidence show that that idea has been acted upon by the building of cottages by the parties to this suit, complainants and defendant, and by others owning property on the tract. To prohibit the building of a dwelling within 15 feet of the street and to permit a store or other building to be run out to the street seems at a glance to be destructive of the idea that was originally entertained in imposing the restriction, which idea has been fully carried out by all of the owners of lots.
In Kirkpatrick v. Peshine, 24 N. J. Eq. 206, Chancellor Runyon, in restraining the violation of a building restriction, remarked, at page 215 of 24 N. J. Eq., that in Child v. Douglas, 1 Kay, 560, it was held that building a wall or fence across a strip on which the defendant was bound by covenant not to erect a building would be a violation of the covenant. Now, if the putting up of a wall in lieu of a building is violative of the spirit of a covenant against erecting a building, then surely the erection of a store where a dwelling could not be erected is a violation of a restriction in a deed forbidding the placing of a dwelling within 15 feet of a street line.
The restriction must of course be construed so as to effect the intention of the parties. See, also, Ogontz L. & I. Co. v. Johnson, 168 Pa. 178, 31 Atl. 1008.
The leading case in this state on the subject of building restrictions of the character of those under consideration is, I take it, De Gray v. Monmouth Beach Co., 50 N. J. Eq. 329, 24 Atl. 388, affirmed on the opinion of Vice Chancellor Green. See Atlantic City v. New Auditorium Pier Co., 67 N. J. Eq. 610, 619, 59 Atl. 158.
In De Gray v. Monmouth Beach Co. it was held: "Where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lauds, and that each purchaser is to be subject to and to have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan—one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase."
And in Leaver v. Gorman (N. J. Ch.) 67 Atl. 111, it was held: "Equity will restrain the violation of a covenant entered into by a grantee, restrictive of the use of lands conveyed, not only against the grantee covenantor, but also against all subsequent purchasers with notice of the covenant, whether it run with the land or not; but if the original grantor does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom the original grantor may subsequently convey the whole or a part of the remaining lands."
In this case (Leaver v. Gorman) Vice Chancellor Stevens observed, at page 112 of 67 Atl.: "There is, however, this distinction: The original grantor, in imposing the covenant upon the grantee, either may or may not bind himself. If he does not bind himself, then his grantee, having no right of action against him, cannot pursue any other grantee to whom he may subsequently convey the whole or a part of the remaining lands."
In Leaver v. Gorman, the complainant was the owner of two improved lots of land in Asbury Park, and the defendant the equitable owner of two other lots. Mr. Bradley, who laid out the park, while imposing building restrictions upon his grantees, had remained unbound himself. Vice Chancellor Stevens in this connection remarked, also at page 112 of 67 Atl.: "The consequence is that, while a subsequent grantee of Mr. Bradley of one lot could enforce the covenant against a prior grantee of another lot, a prior grantee could not enforce the covenant against the subsequent grantee. * * * It so happens that in the case of defendant's unimproved lot the Bradley deeds under which complainant derives title were given before the Bradley deed under which defendant derives title, consequently complainant is not in a position to enforce the covenant against the owner of this lot. As to the lot already used as a mineral water factory, it so happens that complainant's is the later title, and, consequently, she is in a position to enforce the covenant; * * * and she possesses this right, scheme or no scheme, for the covenant required by Mr. Bradley of his grantee of lot 141 was undoubtedly intended for the benefit of the remaining land, of which complainant's predecessor in title afterwards obtained a part."
While I believe that the Murphy heirs had in mind a scheme of improvement for their lands binding upon Witherspoon street, which contemplated the erection of dwellings at a uniform distance from the street line, nevertheless they imposed no restriction upon themselves, and the scheme was not made public, and it does not appear that each purchaser was made aware that every other purchaser was to be subject to and to have the benefit of the plan. Therefore the complainants' right to an injunction in this case depends upon the date of their title with reference to the date of the defendant's title, itbeing perfectly apparent that the restriction in the Nixon and Tash deeds was intended for the benefit of the remaining land.
The complainant, Vann, acquired title from the Murphy estate upon the same day that Nixon, the grantor of the defendant, acquired his title, namely, June 1, 1895. Therefore neither Vann nor Nixon, under whom Tash claims, can be said, as between themselves, to be prior or subsequent grantees of the Murphy estate; but, the deeds from the Murphy estate to the complainants, Brownley, Hyman, and Woodson, were all made long after the deed to Nixon, and that of the complainant, Brownley, was made after Nixon's conveyance to Tash.
Assuming, then, that the complainant Vann is not in a position to ask the interposition of this court because his conveyance is contemporaneous with and not subsequent to that under which the defendant claims, nevertheless the other complainants, because holding titles subsequent in point of time to that derived by Tash mediately from the Murphy estate, are entitled to the injunction for which they pray.
As the complainants acted promptly in this matter, and as the defendant progressed with his building in the face of warning, the complainants are entitled to a mandatory injunction to secure the removal of the structure which has been erected by the defendant in violation of the restriction in his deed. Morrow v. Hasselman, 69 N. J. Eq. 612, 61 Atl. 369. The complainants are entitled to costs.
The decree will be entered, and the injunction go in the name of the complainants other than Vann; but the result will necessarily be exactly the same as though he had, like the other complainants, a beneficial interest in the decree.