87 N.J. Eq. 480 | New York Court of Chancery | 1917
This bill prays for a mandatory injimction to remove buildings erected in violation of a building restriction. In the early sixties, Charles K. Landis, the owner of the “Great Vineland Tract,” in Cumberland county, laid out what is now the borough of Vineland, plotted the same into streets and building lots,- and adopted a uniform and general building scheme requiring, inter alia, all houses to be set back twenty feet from the street line. The lots were conveyed by deeds of general warranty, in which no mention or reference was made to the restriction. Landis had his own peculiar methods. When he sold lots on the installment plan, he entered into what he termed a “Bond of Agreement,” with the purchasers, wherein for the stated consideration price, and the purchaser “complying with the covenants hereinafter stipulated,” he agreed to sell the described lot, and the purchaser on his part agreed to plant shade trees, erect on the lot a habitation within one year, fence the lot (if at all) with a certain kind, and whitewash or paint it, and keep the sidewalk clear of underbrush and rubbish, “houses to be at least twenty feet from the side of the road,” the side of the road to be plowed and seeded within two years. Contemporaneously,
. The- covenants, in so far as they concern the location of buildings as a part- of the community scheme, created an implied equitable servitude on her lots in favor of the other lot owners, binding upon her grantees, direct and remote, who took with notice and enforceable upon the principle of preventing one having knowledge of the just rights of another from defeating such rights. Brewer v. Marshall, 19 N. J. Eq. 537. As part of a general improvement scheme, such agreements have been repeatedly enforced in this court at tire instance of other lot owners. DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, and the line of authorities citing this case in Shepard’s Annotations.
The question to be determined then is: Did the defendant purchase with notice, actual or of such circumstances which upon reasonable inquiry would have informed him of the situation? He denied having any knowledge or information whatever of the agreements and, admitting that he made no .inquiry, explained that he assumed that section 17 of the act establishing the township of Landis (P. L. 186k p. 180), which provides, among other things, that it shall be within the power of the township committee to make it unlawful “to build any house, barn or other out house nearer than twenty feet of the side of any street or avenue in the town plot of Vineland as recorded in the clerk’s office at Bridgeton,” was responsible for the rigid adherence to the twenty-foot line by the inhabitants of the borough. His positive denial is not at all satisfactory,; nor does his explanation appeal to me as sincere. Nearly fifty years ago, when the town was in its infancy, the defendant moved to Vine-land, studied law in the office of Mr. Landis’ counsel, was admitted to the bar in 1870, and has practiced his profession there ever since. During that time Mr. Landis, in developing. his enterprise, gave great prominence and notoriety to the restrictions, in pamphlet form and local newspapers. It is remarkable, if true, that of the sixteen and more exhibits distributed far and wide by the thousands, shown to the defendant at the hearing, he never, as he said, saw any. It is also inconceivable that he did not gain a knowledge of the agreements while in the office of his preceptor, or that they did not come to his notice at some and ofttimes while he was engaged in active practice and
While I hold that the terms of the agreements were obligatory upon the defendant, it does not follow that they are to be enforced against him. The work on the concrete foundation of the fruit-stand building was begun.in September of 1915, and the superstructure in the early part of November, and completed on the 8th day of January following. The bill in this case was filed January 12th, 1916. During that time the complainant daily observed the progress of the building without interference, and it is now too late to hear his complaint. The rule applied in equity is that to protect restrictive building covenants, legal proceedings must be taken before there has been a serious ex
Quite a number of dwellings have overhanging open porches, and some have bay windows extending into the prohibited area, which, it is contended, are in violation of the building regulation and relieve the defendant from an observance of the restriction. The few bay windows do not evince an abandonment (Righter v. Winters, 68 N. J. Eq. 252; Morrow v. Hasselman, 69 N. J. Eq. 612), and as, in the formulation of the building scheme, open porches were doubtlessly contemplated, and, inasmuch as the restriction has been thus, almost universally, interpreted and acted upon, they cannot be regarded as infringements. Ocean City Land Co. v. Weber, 83 N. J. Eq. 476; affirmed, 84 N. J. Eq. 505.
The complainant is entitled to a mandatory injunction in accordance with these views, with costs.