REED, V. C.

Suit by Talcott P. Waters against Daniel L. Collins. Decree for complainant.

Harry Wootton, for complainant.

C. L. Cole, for defendant.

REED, V. C. This bill is filed by Mr. Waters to restrain Mr. Collins from erecting a structure on his lot, within 20 feet of Montpelier avenue, Atlantic City. The complainant and the defendant both own lots fronting upon this avenue. The title of both lots are derived from the Chelsea Beach Company. This company was organized on July 24, 1883, for the purpose of buying and selling real estate; and at that date they bought a large tract of land, which they plotted into streets and lots, of which lots they had sold a large number. The complainant's lot was sold by the company to Amelia Burnham on June 24, 1887. She sold it to Ann A. Bell and Louis P. Scott on January 4, 1895. They sold it to complainant on February 13, 1895. The lot of Collins, the defendant, was sold by the company to Mary A. Riddle on March 10, 1887. She sold it to Enoch B. Skull on June 9, 1887, and he sold it to the defendant August 8, 1895. The deed from the Chelsea Beach Company to Amelia Burnham contained certain restrictions and covenants. Among them was this: "That no building shall at any time be erected within twenty feet of the front property line of any street or avenue, except on Atlantic avenue; nor within five feet of the side lines of such lot, except where a party may own two or more contiguous lots; then, a building may be 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 five feet of the outside line of said lots, nor within twenty feetof the front property line thereof; and also that no building of less value than five hundred dollars shall be erected thereon." There are other restrictions in regard to the kind of buildings that shall be erected, and how they shall be used. Then follows the agreement that the several covenants above specified shall attach to and run with the land, and shall be lawful, not only for the said Chelsea Beach Company and its successors, but also for the owner or owners of any lot or lots adjoining in the neighborhood of the premises hereby granted, deriving title from or through the said Chelsea Beach Company, to institute and prosecute any proceedings at law or equity against the person or persons violating, or threatening to violate, the same. These restrictions were incorporated in all the deeds constituting the line of title from the Chelsea Beach Company down to the complainant. The same restriction and covenants were contained in the deed from the Chelsea Beach Company to Mary A. Riddle, but not included in the deed from Skull to the defendant. The lot of the defendant is plotted on the northeast corner of Atlantic and Montpelier avenues. It lies 50 feet on the former avenue, and 113 feet on the latter avenue. The lot of complainant also faces the north side of Montpelier avenue, and is the second lot south of complainant's lot, on the same side of the avenue. The defendant has begun the erection of a building on his corner lot, which building will stand a distance of 7 feet only from the north side of Montpelier avenue. The complainant insists that, by force of the restriction already mentioned, the defendant must set his proposed building back at least 20 feet from the north side of Montpelier avenue. If this proposed erection is violative of the restriction contained in the respective deeds from the Chelsea Beach Company to the grantors of the complainant and defendant, there can be no question but that the complainant has the right to invoke the action of this court to restrain the defendant from continuing the erection of his proposed structure. This is not denied. The right of the complainant, however, to invoke the aid of this court in the present instance is, in the first place, resisted on the ground that the restrictive clause contained in these deeds does not apply to that part of the defendant's lot which lies on Montpelier avenue.

The argument upon this point is to this effect: That the plan of lots upon the map filed by the Chelsea Beach Company displays complainant's lot as fronting on Atlantic avenue, with its south side on Montpelier avenue; that the language of the restriction is that no building shall be erected within 20 feet of the front property line of any street or avenue; that the present structure is not upon the front property line, but is upon the side property line of Montpelier avenue. At the argument I was impressed with this view of the scope of the restriction. But a more deliberate examination has convinced me that this is not the meaning to be extracted from the language of the clause. The object of the clause was to preserve an uninterrupted view throughout the length of the street, and this could not be effected if the corner buildings were placed within 5 feet of the side street line, although all the remaining buildings in the block should be kept back the limited distance. And it is perceived that, if this construction of the 20-foot limitation does not apply to this corner lot, it does not apply to any corner lot; and therefore the view from the thoroughfare to the ocean on each of the four avenues could be intercepted at each corner. The distinction drawn between the two restrictions, the 20 feet and the 5 feet restrictions, is a distinction between boundaries by other lots and boundaries by street lines. Now a lot fronts on a street when it lies face to face with, or opposite to, a street The front property line of any street is a boundary which delimits private property lying along that street from the street itself. Both at Atlantic avenue and Montpelier avenue this condition of affairs exists. There is therefore on both streets a front property line of defendant's lot. "The front of the lot," remarked Judge Miller in his opinion delivered in the case of City of Des Moines v. Dorr, 31 Iowa, 89, "is very well known to be that part of the same which faces a street or streets. It may front on one street only, or it may front on two. What is the front of a lot, is determinable by its facing upon a public street or streets." In this case the lot faces upon two public streets, and it was held in the lastmentioned case that a corner lot fronted on both of the streets which formed the angle. I am therefore of the opinion that the restriction does apply to Montpelier avenue.

Again, the answer sets up that, even if the original restriction applies to defendant's lot, yet its effect was nullified by a resolution passed by the hoard of directors of the Chelsea Beach Company in 1889. This resolution was to the effect that no building shall at any time be erected on a corner lot on Atlantic avenue within 5 feet from the side street property line, but may be erected to full party line of the adjoining lot, and on all other Atlantic avenue lots may be erected to full party line of adjoining lots. This restriction, the answer states, was put into deeds made inferentially for lots on Atlantic avenue subsequently sold. Now, as appears by the above statement, this resolution was passed after both the deeds from the Chelsea Beach Company for the two lots in question were executed. Nothing, therefore, can be clearer than that such resolution was entirely efficacious to affect in any respect the contractual rights to the parties to those deeds. The company could not sell lots, holding out to the grantees a restrictive scheme intended to advance the value of the propertysold, at the expense of property to be yet sold, and afterwards receive un enhanced price for subsequent lots, by a removal in whole or in part of the restriction bargained for. To the point that a party cannot be absolved from such a restriction by a subsequent agreement or resolution is the case of Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190.

It is again insisted that there was a practical construction of this clause, to the effect that it meant to restrict the side street lines to a 5-foot space; that Mrs. Riddle built a house in 1885 within 5 feet of Brighton avenue; that a Mr. Collins had been informed that he had the right to build a house within the 20-foot limit on Morris avenue; and that a Mr. Lake built within that distance on Chelsea avenue. Now, in respect to practical construction, neither these nor any other acts can vary the force of a restriction where the language is unambiguous. Nor do the resolutions of the board of directors, so far as they are relied upon, seem to be a practical construction of the original restriction, but rather a subsequent modification of those restrictions. So upon that point I am unable to perceive anything to modify the construction already given to the covenant in question.

It is again insisted that, not only have the houses already mentioned been built, but that on other streets verandas and porches have been built within the 20-foot limit, and that subsequent deeds have been made modifying the restriction as to corner lots on Atlantic avenue. Now there are cases which hold that where there is a general abandonment of a scheme by which lots were to be sold to grantees, who were to be restricted, or were restricted, in the method by which the lots should be occupied, all the grantees became absolved from the performance of any restrictive covenant. But no such general abandonment is exhibited by the answer in this case. There has been no general change in the neighborhood which rendered the restrictions useless, and the inference is that a great number of grantees have conformed to the restriction.

My conclusion is that the rule to show cause should be made absolute, and an injunction issued in accordance with the prayer of the bill.