116 Misc. 571 | N.Y. Sup. Ct. | 1921
This action was brought to restrain the erection by the defendant of a garage upon her property which adjoins the property of the plaintiff. A motion for a temporary injunction to restrain the erection of the building was denied at the Motion Term, and the defendant proceeded with the construction of the garage and completed it. The defendant is the owner of a plot of land in Flatbush, situated on the northwesterly corner of Albemarle road (formerly known as Avenue A) and East Nineteenth street. The plot has a frontage of 70 feet on Albemarle road
Upon the defendant’s property there stands a reconstructed dwelling house fronting on Albemarle road and the rear of which is more than eighty feet south of the plaintiff’s southerly line. On the plaintiff’s property stands a frame dwelling house facing on East Nineteenth street. The defendant has constructed close to the southerly line, of the plaintiff’s property a frame and cement garage twenty-two feet in depth by twenty feet in width, with a runway of about forty-six feet from the front of the garage to East Nineteenth street. Th'e re'ar wall of the garage stands on a line less than sixty-eight feet westwardly from the westerly line of East Nineteenth street.
Both plaintiff and defendant derived title through mesne conveyances from one Richard Fichen. The
Fichen conveyed the property of which the defendant’s property forms a part to- one Catharine M. G. Moon by two deeds, both bearing date May 1, 1889, and recorded on January 25, 1890, in liber 1942 of Conveyances at pages 58 and 61 respectively.- The first of these two deeds (Plaintiffs Exhibit 6) conveyed -a plot described as follows:
“ Beginning at a point at the intersection of the northwesterly corner of Avenue- A and East Nineteenth Street and running thence Northerly along the Westerly side of East Nineteenth Street one hundred and fifty feet thence running westerly and parallel with Avenue A one -hundred feet thence running southerly and parallel with East Nineteenth Street twenty-four feet thence running easterly and parallel with Avenue A fifty feet thence running southerly and parallel with East Nineteenth Street one hundred and twenty-six feet to Avenue A and thence easterly along the northerly side of Avenue A fifty feet to the point or place of beginning.”
This deed contained this covenant on the part of the grantee:
“ The party hereto of the second part, Catharine M. G. Moon doth hereby covenant for herself her heirs and assigns with the party of the first part Richard Fichen his heirs and assigns that the said party of the second part her heirs or assigns will not erect or permit to be erected on the said premises above described or any part thereof any building for the keeping storing or maintaining of any fire engine hose carriage or hook and ladder truck or appliances and will not erect a building on said premises or any part thereof costing less than five thousand dollars
The second deed from Fichen to Moon (Plaintiff’s Exhibit 7), conveyed the parcel of land described as follows:
“ Beginning at a point on the northerly side of Avenue A distant seventy feet westerly from the Northwesterly corner of Avenue A and East 19th Street running thence northerly and parallel with East 19th Street one hundred and twenty-five feet thence westerly and parallel with said Avenue A thirty feet thence again Northerly and again parallel with East Nineteenth Street one foot thence easterly and again parallel with Avenue A fifty feet thence southerly and parallel with East 19th Street one hundred and twenty-six feet to the northerly side of Avenue A and thence westerly along said’ northerly side of Avenue A twenty feet to the point or place of beginning,” subject to a covenant against nuisances and also against the erection of “ any building whatever for the period of twenty years from date, nor at any time any building except upon the building line as now established.”
By an agreement entered into on the 27th day of May, 1899, between Richard Fichen and Teresa A. Scott, who at that time was the owner of the property conveyed by Fichen to Catharine M. G. Moon, it was, for the purpose of clarifying and defining the meaning and intent of the covenants in the Moon deeds, agreed that the covenants, restrictions, provisions and agreements in said Moon deeds contained should be construed to read as follows:
“ The party of the second part hereto for herself, her heirs and assigns will not erect or permit to be erected on the said premises in said deeds described
In practically all of the mesne conveyances of the defendant’s property from Moon to the defendant there were recitals that the property was conveyed subject to restrictive covenants of record or in certain cases to “ all liens ” on the property conveyed. In the deed to the defendant Gload it was recited that the property was conveyed “ subject however to covenants and restrictions as contained in former recorded deeds' affecting said premises.”
Turning now to the title of the plaintiff to her property we find that the deed contains a covenant against nuisances and against the erection on the property of “ any barn or stable for horses,” and also that no dwelling costing less than $5,000 should be erected upon the plot. This covenant was continued in subsequent deeds down to and including the deed to the plaintiff.
By the two recited deeds from Fichen to M'oon there had been conveyed in addition to the property now owned by the defendant a plot twenty-five feet in width by thirty feet in depth lying immediately to the west of the defendant’s westerly line and immediately south of the plaintiff’s southerly line, and lying west
It is the contention of the defendant, among other things, that there has been such a change of the neighborhood in which the respective properties' of the plaintiff and defendant are situated that the plaintiff is not entitled to the relief sought by this action, but this I do not find upon the evidence to be the fact. Neither do I find that the plaintiff has precluded herself from asking for an injunction by reason of the fact that there is a private garage erected upon her own property, for the reason that such private garage stands more than seventy-five feet back from the westerly line of East Nineteenth street and that the covenant in the deed to the plaintiff’s predecessor in title refers in the restrictive covenant distinctly to a “ bam or stable for horses.”
The defendant also laid some stress on the fact that in some of the deeds in her chain of title there was no direct reference to the restrictive covenants contained in the Moon deeds, nor in the agreement between ■Ficken and Scott explanatory of these covenants. This, however, is of no consequence because by the recital in the deed to the defendant that the property is conveyed subject to covenants1 and restrictions con
A restrictive covenant as applied to land creates what is known in law as an easement, that is, a servitude without any profit whatever out of the substance of the neighboring tenement but- merely the right to claim from it submission or forbearance. Basements may come into existence in several ways, among which are that of an express private grant -and an express or implied reservation when, on the severance of tenements by a grantor, an advantage which the tenement reserved received from the one . granted is expressly or impliedly reserved to- the reserved tenement and thenceforward enures as an easement over the tenement granted. An easement is negative in character when the owner of the servient tenement is restricted in the exercise of the natural rights of property by the existence of the easement. In the' case at bar the basis of the plaintiff’s claim is that the defendant’s property is burdened with a negative easement in favor of the plaintiff’s property which prevents the erection of such a garage as the defendant has erected. A negative easement maybe enforced in a court of law where it runs with the land, but equity will also raise or imply negative easements -of an equitable nature where they are not such as the court of law would enforce. Such negative equitable easements are referred to in Beeves on Beal Property
In the case at bar the restrictive covenant under consideration was plainly created by Ficken for the benefit of the property of which he remained the owner at the time when the covenant was imposed. It was clearly the intention of the parties, both in the
I can “reach no other conclusion, therefore, upon these authorities except that the defendant acquired her property subject to the negative easements contained in the Ficken deeds.
The last point to be considered is whether the erection by the defendant of a private garage violates the restrictions against a private stable. The covenants in the deeds to Moon and the agreement with Scott prohibited the erection of any building costing less than $5,000, with the exception only of a bam or stable, providing such bam or stable is erected on that part of the premises conveyed lying west of a line drawn parallel with East Nineteenth street and distant seventy feet westerly therefrom. This imposed upon .the grantee the necessity of choosing whether she desired any garage at all or a garage which should not stand closer to East Nineteenth street than seventy feet. The same necessity confronts her grantee, the present defendant. In my
'The question is1 whether the garage built by the defendant falls within the prohibition of the restriction against the .erection of a bam or private stable.
In this connection it should be noted that the bam or stable mentioned in the covenant is not limited to a stable for horses or any other animals and I think the term used includes an automobile garage. I had occasion, in the case of Schmolke v. Hardy, N. Y. L. J. Nov. 3, 1919, to consider the question whether a garage came within the definition of a stable within the purview and for the purposes of the interpretation of a restrictive covenant, and I followed in that case the ruling in Beach v. Jenkins, 174 App. Div. 813, where it was held that the building of a garage violated the barn or stable restriction then ufider consideration. See, also, the case of Hepburn v. Long, 146 App. Div. 527, distinguishing Beckwith v. Pirung, 134 id. 608.
While it does not affect in any wise the legal questions involved in this case, I cannot help observing that it is a matter of regret that, although the defendant at one time had agreed not to build the garage close to the plaintiff’s southerly line, she afterward changed her mind and built it where it now stands. By placing it where it now stands it is within seventeen feet of the side windows of the plaintiff’s house and yet is more than sixty feet away from the nearest part of defendant’s own residence. The placing of it where it stands seems to have been an unnecessarily detrimental and unneighborly act on her part, and it indicates her own view that it would be to her advantage to have the garage as far removed as she possibly could put it from her own dwelling, thereby
As has been noted, the defendant prosecuted the work of building the garage after being informed of the plaintiff’s claim in respect of the covenant under discussion. For this reason and notwithstanding the fact that the preliminary injunction was refused, a mandatory injunction should issue. Mr. Pomeroy in his work on Equity Jurisprudence (Vol. 4, § 283, p. 3978) says: “Where a party knowingly, and against remonstrances, builds in violation of restrictive covenants, a mandatory injunction may issue to compel the removal of such portions of the building as are in violation thereof. * * * Attorney-General v. Algonquin Club, 153 Mass. 447. If such relief were not allowed, something not short of a right would be claimed by stoutly asserting an invalid claim.” See, also, O’Connor v. Bauer, 127 App. Div. 854; Jones Ease. .(1898 ed.) § 890. In Salomon v. Sperb a judgment in an action of this kind was entered in New York county on September 24, 1906, and this1 judgment was affirmed without opinion by the Appellate Division (120 App. Div. 875), and also without opinion by the Court of Appeals (193 N. Y. 624). That action was begun to compel the defendant to take down a building which he had erected on the rear portion of premises No. 745 Sixth avenue, in alleged violation of a covenant contained in a deed made by a former owner of the property dated April 1, 1859, providing that the property there in suit should not
I shall, therefore, grant judgment in favor of the plaintiff, with costs, as prayed for,, including a mandatory injunction compelling the defendant to remove the garage from her property, it having been built after she had notice from the plaintiff that the plaintiff would claim that it was being erected in violation of the restrictive covenants referred to.
It may be that the plaintiff and defendant will be able to agree that the garage may remain somewhere on the defendant’s premises on condition of the defendant’s compensating the plaintiff in money damages for the injury which she has sustained. If the parties can agree upon such a sum, the decree may provide for it in lieu of the mandatory injunction.
Ordered accordingly.