110 N.J. Eq. 92 | N.J. Ct. of Ch. | 1932
The bill is to enjoin the defendant from maintaining and using a private garage attached to the rear of his dwelling house, which is located on a lot adjoining the residence of complainant. The only question involved is whether or not that garage, as constructed, violates a restriction, common to all deeds for lots in the tract, which reads as follows: *93
"No garage, stable or other outbuilding shall be constructed, erected, placed or maintained upon said land nearer than 100 feet to the east side of Buena Place."
The garage as constructed is within the proscribed one hundred feet but it is contended by the defendant that because it is attached to the dwelling house it does not come within the inhibition of the restriction. At the final hearing, the court construed the restriction to be "against a stable, or a garage, which is an outbuilding," and this construction was assented to by counsel. Counsel for complainant in his brief, however, now argues against this construction and insists that the word "other" is an adjective referring only to the word "outbuilding." But I think it is clear that the words "other outbuilding" have a close and definite relation to the words "garage" and "stable," and are, in effect, descriptive thereof. With this construction the restriction reads: "No garage which is an outbuilding, and no stable which is an outbuilding, and no other outbuilding shall be constructed," c. I adhere to the construction placed upon the restriction at the trial. The real question presented for decision, therefore, is whether or not the structure complained of is an outbuilding; if not, it may lawfully be maintained; but if it is an outbuilding, then it is violative of the restrictive covenant.
The Standard Dictionary defines an outbuilding as "a small building appurtenant to a main building and generally separated from it; an outhouse." And "outhouse" is therein defined as "a small building standing apart from, but appurtenant to, a main or large building or dwelling; an out-building." The words "outbuilding" and "outhouse" are often used interchangeably.Bennett v. Haerlin,
"What we are concerned with is the question whether, in view of its attachment to the house, this garage is to be considered as a thing apart from the house.
"The term `outhouse' naturally implies that the structure under consideration is not one with a dwelling house. Clearly it must be something distinguishable and distinct from the dwelling house to which it is subservient. Otherwise it were ill named. Upon the question as to what the requirement as to distinction and separation imports and what it signifies, adjudicated cases, * * * throw little light."
A further reading of the opinion will show that while the question of whether or not an outhouse is of necessity a structure separate and standing physically apart from the dwelling house to which it is subservient is there raised and discussed at some length, it is not answered. The authorities, it seems, are not in complete accord as to the exact meaning of the words but it is noteworthy that reputable legal authorities (Bouvier and Wharton) say that an outhouse is "a building belonging and adjoining to a dwelling house." My own opinion is that absolute physical separation from the mansion house is not necessarily the distinguishing feature of an outbuilding and that outside appearances are not always conclusive. I suspect that the term "outhouse" may anciently have been almost solely descriptive of that "weather beaten object * * * behind the house and barn * * * a half a mile or more," immortalized in verse and prose by James Whitcomb Riley and Chic Sales; and, if the present controversial garage is permissible, the defendant might with all propriety attach one of those interesting structures to the rear of his garage and within the proscribed area. But it is hardly to be supposed that he would be permitted to do so without strong protest on the part of his neighbors. *95
But this restriction does not prevent the construction and maintenance of the modern type of attached garage, if it is an integral part of the dwelling house and so constructed as not to give the effect of a separate building and so attached to the house as to present the appearance of and be, in fact, architecturally and otherwise, part of it. Peirce v. Beyer, 66Col. 554; 185 Pac. Rep. 348; Bassett v. Pepe, supra. The practice in modern building construction of including a garage as an integral part of a dwelling house was referred to by mearguendo in Hilsinger v. Schwartz,
In Rothholz v. Stern,
But neither Sullivan v. Sprung (N.Y.),