72 N.J. Eq. 812 | New York Court of Chancery | 1907
When an owner of a tract of land lays it out into streets and lots and adopts a restrictive covenant of the nature of the one now in question with a view to secure the.defined conditions named in the covenant for the benefit of the entire tract which he seeks to develop, and inserts the covenant in all deeds as a part of the defined scheme and as an exaction from all purchasers for the benefit of each purchaser, the equitable right to the enforcement of the covenant enures to each purchaser irrespective of the time of his purchase. Under the conditions named the benefit to be derived from the covenant as a part of the general scheme necessarily enters into the consideration of each purchase, although the covenant may, in terms, only bind each purchaser and his heirs and assigns.
It is urged on behalf of defendant that the present amended bill and annexed affidavits do not afford sufficient evidence of the conditions above stated to warrant the issuance of the preliminary writ sought. While the amended bill and affidavits annexed to it are not as explicit in details as might be desired, I entertain the view that the averments are sufficient to bring complainants’ case within the rule stated. The amended bill shows the purchase of the original tract by the Ocean City Association and its subdivision into lots for sale and the preparation and filing of a map showing the lots thus defined and the adoption by that corporation of “a general building scheme for the purpose of securing the unobstructed view and light and air,” and the adoption of the restrictive covenant now in question and the insertion of that covenant in all deeds which have been executed by the corporation. The affidavit of S. Wesley Lake, an
It is also contended on behalf of defendant that there has been such a departure from the general scheme designed to be preserved by the restrictive covenant as to amount to a waiver of the right to its enforcement.
The record discloses that the territory extending from Eighth to Ninth street, in Ocean City, has, in recent years, become the business portion of the city. In that territory the covenant in question has been frequently violated. Some twelve buildings have been there erected in disregard of the covenant, some as to the front building line and some as to the side lines. But the amended bill alleges that the territory extending southwesterly from Ninth street to Fourteenth street, and from the ocean to the bay, in which territory there are now three hundred and eighty buildings, of which three hundred and thirty are residences, is essentially the residential portion of the city, and that in that territory the covenant has been preserved. The side lines of the lots in question are on Eleventh street, which street runs northwesterly and southeasterly from the ocean to the bay, and is approximately the centre of the territory referred to in the bill as the residential portion of the tract. The answering affidavits point out six buildings within the territory between Ninth and Fourteenth streets which are claimed to be located contrary to the requirements of the covenant. One of these is on Ninth street and another on Asbury avenue near Ninth street. These two buildings are approximately two blocks distant from com
It is pointed out that the front of this building violates the covenant in question, and that at the side of the residence portion of the building brick steps lead from the building to the side line of the street, and the porch encroaches on the building
This review of the testimony is made necessary to intelligently determine whether complainants’ right to enforce this covenant against defeirdant has been lost. From the review it will be observed that there have been no violations of the covenant which have in any substantial way affected the property of complainants, and but two possible violations upon the streets on which complainants’ lot is situated, and that but six violations of the covenant are alleged within a district in which three hundred and eighty buildings are erected.
I think it clear that the equitable right of complainants to enforce this restrictive covenant has not been lost. Even though it should he conceded that the twelve violations of the covenant which have been permitted in what has been defined as the business district northeasterly of Ninth street has amounted to an abandonment, in that district, of the original scheme designed to be preserved by the covenant, it does not follow from that fact that the right to- the enforcement of the covenant for the preservation of the original scheme in a separate district where essentially different conditions prevail has been lost. Changing-conditions, such as the growth of business interests, may well modify the needs of one portion of a city to such an extent as to induce the abandonment of the general plan as to that portion without any intentional abandonment of the plan as to territory where other and radically different conditions prevail. In this view I am unable to regard the breaches of the covenant in the territory northeasterly of Ninth street as evidence of an intention to abandon the preservation of the general plan in the residential portion of the city referred to.
As to the territory southwesterly of Ninth street, which has been defined as the residential district, I entertain the view that the six violations of the covenant pointed out by defendant cannot be considered as sufficient evidence to indicate the abandonment of the original plan in the district where nearly four
I think it also clear that the equitable right of complainants to the enforcement of the covenant in question is not impaired by isolated breaches of the covenant in locations where such breaches can in no way be said to affect the desirability of complainants’ property. It is not to be expected that the courts will be appealed to for the preservation of the general scheme in localities where a complainant is without interest. It is only when the interest of a property owner is affected that, in my judgment, he can be reasonably charged with the duty of applying to the court for the preservation of the general scheme. This view is forcefully expressed by Vice-Chancellor Emery, in Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612, and I concur in the conclusions there stated by the learned vice-chancellor.
It is also claimed, on behalf of defendant, that complainants are in laches in permitting the building of defendant to become partially erected before the bill was filed. I think complainants have done all that can be reasonably required of them. Defendant is not a resident of this state. Complainants promptly gave notice to the foreman of the work that their rights were being violated, and the bill was thereafter filed as quickly as it could be procured.
A preliminary injunction will be advised, in accordance with the prayer of the amended bill.