102 N.J. Eq. 430 | N.J. Ct. of Ch. | 1928
Complainant's bill is for the enforcement of a restrictive covenant which provides that defendants' lot shall not be used for "any trade or business or factory of any kind or nature whatever, and that any part and all of said property is to be strictly used for residential purposes only. * * * This covenant is to be construed as running with the land." It is admitted that defendants propose to use their lot for business purposes.
Defendants' property is in Fairview on the westerly or Fairview side of Mt. Ephraim Pike. The defense is based upon a claim that the development of business enterprises along the easterly side of that Pike, in unrestricted territory of another municipality, requires this court to deny the relief now sought.
The territory known as Fairview was purchased, laid out and built upon during the late war by an agency of the United States government, all buildings being leased and subjected to the restrictions above quoted, except as to a small territory around Yorkship Square, where stores were permitted. At the close of the war this Fairview tract had become a community of between one thousand five hundred and one thousand six hundred homes. The government agency then determined to sell at public sale all the property owned by the government, giving a preference right of purchase to tenants, and called a public meeting to determine whether the community desired the perpetuation of the restrictive covenants. The meeting resulted in an approval of these covenants and thereafter all lots comprising the tract were sold separately, and these uniform covenants were embodied in all deeds of conveyance. Since then these covenants *432
have been uniformly observed except as to a few infractions which have been enjoined. See Dettsloff v. Hockstetter (Court ofErrors and Appeals),
One of the boundaries of Fairview is Mt. Ephraim Pike. Defendants' property is one of the lots on the westerly or Fairview side of that Pike. The easterly side of that Pike is in another municipality. At the time these covenants were established the easterly side of that Pike was unimproved except as to one frame building. Since then Mr. Ephraim Pike has become a state highway and is now one of the main arteries of travel between the Delaware river and the Atlantic ocean resorts. At this time there exists on the easterly side of Mt. Ephraim Pike opposite Fairview three large garages, one of which is the building already referred to as a farm house, a large moving picture theatre, a bakery shop, a lunch wagon, four or five stores, and at least three rows of approximately ten stores each, all used for business purposes. No residences are there, except in the stores, which are in most instances occupied as stores and homes for their proprietors.
Defendants' property is on the westerly side of and faces on Mt. Ephraim Pike and is northerly of and adjacent to Collings road, which road extends easterly and westerly through the Fairview tract to Mt. Ephraim Pike. On the westerly or Fairview side of Mt. Ephraim Pike there are six houses northerly of Collings road and twenty-three southerly of Collings road; all residences. Of the six northerly of Collings road three are now vacant, including defendants' property. Of the twenty-three southerly of Collings road at least three are now vacant, and one is occupied by a physician.
Complainant's residence is on the northerly side of Collings road in the rear of defendants' property, two residences intervening. From the evidence, it may be said to be reasonably clear that the growth of business on the easterly side of Mt. Ephraim Pike has made the properties on the westerly or Fairview side of that Pike much less desirable as residences, *433 and to that extent the properties have been injured in value as residences by the change of conditions which have occurred since the covenants were imposed.
In England the rule appears to be firmly established that a change in the character of a neighborhood will not impel a court of equity to deny the enforcement of a restrictive covenant of this nature, where the change which has taken place was beyond the control and independent of the action of complainant or those under whom he holds. Osborne v. Bradley (1903), L.R. 2 Ch.446, 450; Sayers v. Collyer, L.R. 28 Ch. D. 103; Craig v.Greer (1899), 1 Ir. Ch. 258. In these cases the leading case of Bedford v. British Museum, 2 Myl. K. 552, is distinguished in that in the Bedford Case the acts of complainant contributed to the changed conditions which made burdensome the restraint which was sought.
In this country some courts have adopted and others have rejected the view that the change in the character of a locality may so far defeat the object and purpose of the covenant and render its observance so burdensome to defendant and of so little benefit to complainant that its enforcement will be denied even though complainant should in no way be in fault or responsible for the change. Trustees of Columbia College v. Thacher,
In this state in Page v. Murray,
In the instant case it seems unnecessary to determine whether the English rule, already referred to, may be said to obtain in this state. Assuming as a fact that the business enterprises now existing on the easterly side of Mt. Ephraim Pike and the increased travel on that highway have operated to render defendants' property materially less desirable or even undesirable as a residence property and materially more valuable as a business property, it seems clear that in the circumstances of this case it would not be equitable to withhold the restraint now sought.
The entire town of Fairview is distinctively a residential town, originally established and since strictly maintained as such; the only businesses which exist in the entire town are the stores within the store district as originally established. As is said in DeGray v. Monmouth Beach Club House Co.,
Another important circumstance may be said to exist in this case which should not be overlooked. As already stated, the entire territory of Fairview, except the store section, is embraced in this covenant. Fairview extends along Mt. Ephraim Pike a long distance with a great number of lots and residences facing on that Pike. If defendants' lot is to be released from the equitable obligation of this covenant, all these other lots facing on that Pike, like circumstanced, will in practical effect be released. The defense is indeed predicated upon defendant's purpose to use his lot for business. It follows that the practical effect of throwing open to business this tier of Fairview lots which is adjacent to the Pike will be to establish the next westerly tier of lots in a position adjacent to the newly established business properties, and in *436 turn release them from the operation of the covenants. That process of encroachment could find no end in a tract so circumstanced.
The evidence discloses some changed conditions on Collings road due to bus lines superseding the trolley, but these may be deemed immaterial. Nor can the claim be sustained to the effect that complainant has by enclosing his front porch denied himself relief.
A decree will be advised pursuant to the prayer of the bill.