Opinion
No. 51/597.
10-19-1922
BRODE et al. v. SMITH et al.
nction granted. Bolte, Sooy & Gill, of Atlantic City, for complainants. Cassman & Gottleib, of Atlantic City, for defendants.
(Syllabus by the Court.)
Bill for injunction by Jerry H. Brode and others against Max Smith and others. Injunction granted.
Bolte, Sooy & Gill, of Atlantic City, for complainants.
Cassman & Gottleib, of Atlantic City, for defendants.
INGERSOLL, V. C. Prior to May, 1910, Myers and Carroll owned certain land on the easterly side of Harrisburg avenue and on the westerly side of Trenton avenue in Atlantic City, N. J., which on March 10, 1910, they conveyed to the Realty Sales Corporation. In the deed to the Realty Sales Corporation there was a restriction which, among other conditions, provided that
"The front line of any building (excepting porches) to be erected on said lots, shall not extend within 15 feet of the front property line."
The complainants and the defendants severally hold, by virtue of deeds containing these restrictions from the Realty Sales Corporation, either directly or throught mesne conveyances. The defendants have commenced the erection of a building upon the land owned by them, within 7 1/2 feet of the property line, in violation of the terms of the restrictions. The defendants claim laches on the part of the complainants in giving notice and filing bill. I cannot find such to be a fact.
The evidence shows the adoption of a general plan for the improvement of the property by a uniform scheme, and the complainants are equitably entitled to enforce the restrictions, unless the further objections set up by the defendants are valid. Morrow v. Hasselman, 69 N. J. Eq. 612, at page 616, 61 Atl. 369. As in the Morrow v. Hasselman Case, the first insistment is that these restrictions have been violated to the extent of abandonment on Trenton avenue. This is true. The property of the common grantor upon which these restrictions were placed consisted of two separate tracts, one facing Harrisburg avenue, and one facing Trenton avenue, divided by a waterway, called a basin. No streets immediately connect the two properties. Such abandonment on Trentonavenue cannot affect the inforcement of restrictions on Harrisburg avenue. Morrow v. Hasselman, supra; Brigham v. Mulock Co., 74 N. J. Eq. 287, 70 Atl. 185.
The defendants further claim that other violations have been acquiesced in by the complainants; one, more than 700 feet from the property of the complainant Brode and the second, by the placing of a small garage by one Mrs. Palmer within the restricted area. Neither of these violations directly affect the complainant Brode, and his rights "must be measured by the relation of the asserted violation to the individual lot." The passive acquiescence of a purchaser in breaches of the covenant by which he sustains no particular injury has been held not to deprive him of his equity to protection, where the breach affects his enjoyment of his home. Pearson v. Stafford, 88 N. J. Eq. 385, at page 389, 102 Atl. 836, Chancellor Walker, quoting Vice Chancellor Learning in Brigham v. H. G. Mulock Co., 74 N. J. Eq. 287, 70 Atl. 185, citing Barton v. Slifer, 72 N. J. Eq. 812, 66 Atl. 899; Morrow v. Hasselnian, supra.
The result is that an injunction must be granted in accordance with the prayer of the bill.