83 N.J. Eq. 554 | New York Court of Chancery | 1914
The object of this bill is to enjoin the breach of a restrictive covenant. The Ocean City Gardens Company reclaimed a tract of waste land adjoining Ocean City, in Cape May county, and subdivided it into streets, blocks and lots, according to a plan thereof hied with the clerk of that county. Eor the purpose of improving and developing the tract, a general building scheme was formulated and by covenants incorporated in all of its deeds to purchasers, one of which reads as follows;
“No building of "any description whatever and no porch, fence or other structure of any kind, shall at any time be erected on or over the lots hereby conveyed within twelve feet of the lot line facing the street, or within four feet of the side lines of said lot (excepting where a party may own two or more contiguous lots, in which case a dwelling or hotel may he erected on any part of the lot or lots the owner thereof may desire without regard to the intervening line or lines; provided the same is not built within four feet of the outside lines of said contiguous lots, nor within twelve feet of the lines thereof facing the street).”
There are others which have no bearing on this dispute. The four complainants own, separately, lots in blocks 9 and 10, fronting on Bay road. Block Fo. 9 is bound by Bay road and Simpson road, Battersea road and Forth'street, parallel streets, respectively. The defendant owns six adjacent lots in block 9; three front on the easterly side of Bay road and three on the westerly side of Simpson road, abutting in the rear, and are numbered on the map as 901, 902 and 903; 942, 943 and 944. Lots 901 and 944 are bounded on the southerly side of Forth street. The complainants and defendant hold immediately from the Gardens company, and all of the deeds contain the restrictions- above quoted, except that buildings, &c., on the lots fronting on the westerly side of Bay road, are restricted to twenty instead of twelve feet from the street. On lot 903, facing Bay
The first is that there is no such unity of interests as would justify a joint action by separate lot owners. In pointing out the instability of this objection, it need only be suggested that the right to enforce the covenant inures to each of the complainants as members of a class who may join in seeking redress of a wrong which is common to them all. Marselis et al. v. Morris Canal and B. Co., 1 N. J. Eq. 31. Besides, an objection for misjoinder of parties, first made on final hearing, will be regarded as immaterial where it appears that no injustice will be done the parties by the decree. It should have been pleaded. Story Eq. Pl. § 544.
The next ground is that the covenant is personal to, and enforceable onty by, the defendant’s grantor, the Ocean City Gardens Company. The principle, that uniform restrictive covenants regarding improvements, as a part of a community scheme, are made for the benefit of all who, as lot owners, participate in the project, has been so firmly established by numerous authorities both in this country and England that in this day it is not open to serious discussion. De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329; Morrow v. Hasselman, 69 N. J. Eq. 612; Barton v. Slifer, 72 N. J. Eq. 812. And, indeed, the defendant does not question it, but he urges that the rule is not applicable because of a subjoined limitation in all of the deeds which he argues vests all interest in the covenants absolutely in the grantor. It reads:
“The description by metes and bounds herein set forth shall be conclusive upon the parties, their heirs, successors and assigns, and shall never be construed so as to enlarge said description or embrace land or rights in land not within said metes and bounds.”
“And the said party of the second part hereto (defendant) for himself, his heirs, executors and administrators and assigns, doth hereby covenant, promise and agree to and with the said party of the first part hereto (common grantor) its successors and assigns, not to violate nor fail to comply with any or all of the above-mentioned conditions, restrictions, regulations or provisions, but faithfully to keep and perform the same.”
This embraces the complainants. They, and all other purchasers of lots, are assigns, in the true sense of the word. No one, other than the grantees of the Cardens company, come within that category. So, we have in expressed terms the defendant’s agreement that his undertakings should vest beneficially in the complainants.
The remaining point is that the complainants are not damaged. In support of this, it is contended that facing the defendant’s houses on, and erecting them four feet from, North street, obstructs neither the light, air or view to the complainant’s premises which are on Bay road, “around the comer” from the defendant’s houses. The answer to this is that the interdependent covenant of the defendant easts an equitable burden on his land, or raises an equity, in favor of each of the owners of lots on the tract, and this, no matter how remote may be his location. And in this instance there is a very cogent reason for the application of this doctrine. Ocean City Gardens is essentially residential, and broad avenues, from house line to house line, inviting, if not insuring, floral decorations in front of homes, are obviously important factors in its exploitation, the
We will, therefore, consider whether the erection of the defendant’s houses four feet from North street is a violation of that portion of the covenant which provides that no building shall be erected within twelve feet “of the lot line facing the street.” The side lines of the defendant’s lots, as shown on the map, are undoubtedly those which run at right angles to Bay road and Simpson road and parallel with North street, and while the exterior longitudinal line of lots 901 and 944, bounded by North street, is a side line of these two lots, it is also “the lot line facing the street” and within the prohibition of the covenant forbidding buildings within twelve feet. The primary object of the -parties, to be inferred from the covenant, as has already been observed, was to keep all buildings and structures that distance away from the highway, and the restriction in that respect in nowise conflicts with nor is it modified or qualified by the provision that buildings should not bo erected within four feet of the side lines, because it clearly appeal's that the purpose of the side line restriction was solely for the benefit of adjoining lot owners. This was the view of Yice-Ohaneellor Reed in the unreported case of Waters v. Collins (docket 19, p. 426), referred to by Yice-Chancelior Bergen in Chelsea Land and Improvement Co. v. Adams, 71 N. J. Eq. 771, in enforcing a covenant “that no building shall at any time be erected within twenty feet of the front property line of any street or avenue;” which, as will be noted, was couched in language much less definite in application than the one now considered. And this, after reflection, seems to have been the construction placed upon his covenant by the defendant himself, for, after the bill was
The utmost that can be said in favor of the complainants’ contention, on this- phase of the case, is that their right to enforce the covenant is doubtful, which leads to- a denial of the relief they pray in this respect. Howland v. Andrus, 81 N. J. Eq. 175.