81 N.J. Eq. 389 | New York Court of Chancery | 1913
In 1901 the VanNordt Land Company owned the two tracts of land which are now owned by the complainants and the defendant, respectively, lying in one plot, and undivided. The plot now owned by the defendant was conveyed by it on June 29th, 1901, and by mesne conveyances the title became vested in the defendant. It conveyed the complainants’ land on April 3d, 1902. In the conveyance which it made of the complainants’ tract a covenant was inserted, the portion of which now in dispute reads as follows:
“Only one house shall be built upon said plot, which house shall cost not less than $3,500, and shall be set back at least thirty-five feet from Paulison avenue and at least ten feet from the southeast line of said plot.”
There was also a covenant in the same deed by the grantor that when it should convey the adjoining plot which is now owned by the complainants, it would insert therein a covenant as follows:
“Only one house shall be built upon the said plot, which house shall cost not less than three thousand five hundred dollars and shall be set back at least thirty-five feet from Paulison avenue and at least ten feet from the above-described premises which are conveyed by this instrument to the aforesaid party of the second part.”
When the VanNordt Land Company conveyed the tract now owned by the complainants the covenant agreed upon was inserted in the deed. It was conceded that the covenants run with the land and that the respective owners in the erection of dwelling-houses thereon should each keep away from the boundary line
The defendant began the erection of a house on his plot in August of 1911. After the foundation had been laid out the complainants suspected that some portion thereof was within the restricted area, and so notified the defendant. The defendant, however, continued his building operations and finished the house as contemplated. The eaves of the defendant’s house overhang the restricted space two feet and two inches, and there is a cellar-way which extends three feet or thereabouts further into the restricted space. This cellarway is covered with inclined doors and does not extend upwards beyond the level of the foundation.
Before the defendant’s house had been finally completed, and on December 18th, 1911, the complainants filed their bill praying for an injunction to prevent the defendant from locating any building upon his said plot of land which should not be at least-ten feet from the said boundary line, and that he be compelled to remove any portion of his building which might be found to be Avithin ten feet of such boundary line, and that he might be enjoined and restrained from 'maintaining a kitchen on the avenue front of his building, and further restrained from operating or conducting his building in such a manner as to constitute a nuisance, or as to injure the property 'of the complainants, with a prayer for further relief.
The ansAver admits the covenants and the locations of the two buildings and the amounts of the encroachments substantially as they are herein above set out, and on the hearing there was very little, if any, dispute about the facts.
That portion of 'the bill which prays that the defendant may be restrained from using his kitchen and maintaining a nuisance must be disregarded. The defendant’s house has never yet been occupied, and the kitchen has never been used; no nuisance has yet been committed or threatened, and on this issue the decision must be for the defendant.
It is quite plain from the proofs that the violation of the cove
1, therefore, am of the opinion that these violations are so unimportant in their features and so little violative of the spirit of the covenant in question, that they ought not to be considered, and they ought not to be relied upon as the foundation of a de•cree to compel such extensive alterations in both houses as will be necessary to make them conform exactly to the covenant. The doctrine of immaterial violations is discussed in Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612; Barton v. Slifer, 72 N. J. Eq. (2 Buch.) 812, and Newbery v. Barkalow, 75 N. J. Eq. (5 Buch.) 128. If, however, the foregoing should be an erroneous view of the case, and the'violation by the defendant should be considered to be material and vital, then it is quite apparent that the complainants could not urge the violation as the basis for a
There is, however, a projection to the defendant’s house which is one story high and about twenty feet long, which does extend over the restricted line about fifteen inches almost, in fhe form of a bay window. It is much the same construction as was dealt with by this court in Kirkpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Gr.) 206, and in Righter v. Winters, 68 N. J. Eq. (2 Robb.) 252, and is material, -for the reason that it extends fifteen inches into the restricted space. The complainants informed themselves of the situation, directly after the foundations therefor had been laid, and on October 31st, 1911, or the day following, their counsel wrote a letter to the defendant calling his attention to the erroneous location of his building, and a considerable correspondence ensued between that time and the filing of the bill on December ISth following. In the meantime the construction was going forward, and until the date of the filing of the bill no proceedings were taken to enjoin the construction. It was the duty of the complainants under this state of facts to act immediately after they had ascertained ydiat. the situation was. Sutcliffe v. Eisele, 62 N. J. Eq. (77 Dick.) 222; Zelman v. Kaufherr, 76 N. J. Eq. (6 Buch.) 52; Meaney v. Stork, 80 N. J. Eq. (10 Buch.) 60. The complainants cannot, in a situation like this, protect their rights by claiming such rights, however persistently, by mere correspondence. Legal proceedings must be taken before there has been a serious expenditure of money. They waited until the defendant’s building was half finished, and not until then did they seek the relief which they should have sought as soon as they had ascertained the facts. On this branch of the case I must hold that the complainants are guilty of laches.
The complainants, therefore, can have no relief against the defendant, and the bill must- be dismissed, with costs.