Opinion
07-24-1913
CAMOVITO v. MATTHEWS et al.
Halsted H. Wainwright, of Manasquan, and Frank S. Katzenbach, Jr., of Trenton, for complainant. Wilfred H. Jayne, Jr., and R. T. Stout, both of Lakewood, for defendants.
Bill by Vincent Camovito against Jennie L. Matthews and others. Heard on pleadings and proofs. Bill dismissed.
Halsted H. Wainwright, of Manasquan, and Frank S. Katzenbach, Jr., of Trenton, for complainant.
Wilfred H. Jayne, Jr., and R. T. Stout, both of Lakewood, for defendants.
BACKES, V. C. This is a bill to enforce a restrictive covenant. In 1892 Murray D. Stout conveyed a vacant lot fronting 100 feet on the easterly side of Clifton avenue (corner of Fourth street), Lakewood, N. J., to Peter W. Fick. The deed contained this covenant: "All buildings and additions thereto which the said party of the second part, his heirs and assigns shall erect or cause to be erected at any time now or hereafter will be set back on a line with the other buildings on the same side of the aforesaid avenue and street." The covenant was not one of a community scheme. By divers mesne conveyances the complainant and Jennie L. Matthews, defendant, are each owners of 50 feet frontage. The defendant's title was the first taken from the covenantor. At the time the covenant was made there were but two or three buildings on the east side of Clifton avenue. These set back from the street line approximately 13 feet. Former owners erected buildings on the lands of the complainant and defendant in about the same range, which are now used as stores with dwellings overhead. Trade has pushed its way up along Clifton avenue, so that at the present time the locality of the defendant's property is more commercial than residential, and nearly all of the buildings devoted to business are built out to the street line. In keeping with them the defendant is building and extending her store to the street line of Clifton avenue. The complainant, who evidently is not inclined to keep up with the progress of the neighborhood, seeks to restrain her by an enforcement of the covenant of their predecessor in title. As I view the covenant it is prospective and ambulatory in its operation and application. Its meaning is that, wherever the buildingline should be created by erections of neighboring owners, to that line the covenantor and his successor in title may accommodate themselves. No other reasonable construction, it seems to me, can be given to the covenant. The contention of the complainant that the covenant relates to the line of the two buildings then (1892) on the east side of Clifton avenue (Palmer House and Brown's store) is not impressive.
There is, however, another consideration which precludes relief to the complainant. The covenant is at least vague and ambiguous. Courts of equity do not aid one man to restrict another in the uses to which he may put his property, unless the right to such aid is clear, and, in cases when the right of the complainant to relief by the enforcement of a restrictive covenant is doubtful, "to doubt is to deny." Fortesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. 923, Ann. Cas. 1912A, 79; Howland v. Andrus, 86 Atl. 391.
The bill will be dismissed, with costs.