80 N.J. Eq. 83 | New York Court of Chancery | 1912
The covenant contained in the agreement of sale, which covenant complainants now seek to enforce, is as follows:
“And further, the parties of the first part do hereby agree to and with the party of the second part that they shall so provide that no building shall be erected upon the lot adjoining said premises on the west, nearer than three feet from the party line between said lots.”
Defendants urge that the deed of .conveyance which was made pursuant to the agreement of sale was necessarily operative to discharge all obligations arising under the agreement of sale. .1 am unable to adopt that view. That effect should only be
B]f a cross-bill defendants seek to have the covenant in question reformed, alleging that the real agreement between the parties touching the location of any building thereafter to be built on defendants’ lot was with reference to the main body of such building and did not include a restriction against an overhanging bajr window or eaves. The evidence is clearly insufficient to justify a decree of reformation.
It is also contended in behalf of defendants that even though the covenant should not he reformed the restriction touching the distance the “building” should be erected'from the line must he understood to refer to the main body of the building and not to overhanging bay windows or eaves. I am unable to adopt that view. The covenant is that no building shall be erected nearer than three feet from the division line. The language
It is also urged in behalf of defendants that circumstances exist which disclose that the parties to the covenant here in question used the term “building” with the mutual understanding that bay windows and eaves projecting over the restricted space were not to be regarded as in violation of the covenant. As already stated, the evidence failed to disclose any mistake of tha parties in the execution of the agreement. But'it is urged that certain other similar covenants in Atlantic City have been heretofore treated as not applying to bay windows and eaves which overhang restricted spaces, and the claim is made that it must
It is also contended in behalf of defendants that complainants are not materially injured by the encroachment complained of. The projecting bay window extends but seventeen inches and the eaves but sixteen inches over the restricted space. The distance from the nearest part of defendants’ building to complainants’ building is thirteen feet eight inches. Under these circumstances, it is obvious that no considerable damage is being suffered by complainants by reason of the encroachments. But in cases of this class it is unnecessary for complainants to prove that damage is sustained by them. Kirkpatrick v. Peshine, 24 N. J. Eq. (9 C. E. Gr.) 206, 216; Morrow v. Hasselman, 69 N. J. Eq. (3 Robb.) 612, 615. The rights which accrue to complainants under a covenant of this nature are property rights in the restricted space. It may be that at this time the space between the two buildings is adequate to afford such light, air and view that complainants suffer no present inconvenience; but com
Nor can it he here appropriately contended by defendants that the damages which will he suffered by them in vacating the part of the restricted space which they now occupy will he disproportionate to the benefits accruing to complainants. Notice forbidding the encroachment was served on defendants by complainants before the building was erected and the present bill was .promptly filed. Defendants have completed their building, wqll imowing of complainants’ claim and in the face of the present bill. A preliminary writ of injunction was refused because of a cross-bill filed by defendants to reform the covenant. Under these circumstances, defendants cannot now reasonably complain of the loss they may sustain in being compelled to com-, ply with their covenant.
At the time -the hill was filed another structure had been erected by defendants upon the festrieted space in the nature of a “spite” fence some ten feet in height. Defendants now concede that that structure-was in violation of the covenant and have removed it. The writ to he issued need not, therefore, have reference to that structure.
I will adtise a decree for a mandatory writ of injunction requiring defendants to remove so much of the hay window and eaves of their house as are less than three feet from the division line which separates the lots of complainants and defendants.