Opinion
07-12-1899
EVANS v. MARY A. RIDDLE CO. et al.
Allen B. Endicott, for complainant. Thomas E. French, for defendant.
Bill for injunction by Charles Evans against the Mary A. Riddle Company and others. Injunction granted.
The complainant, who owns a hotel upon land on the easterly side of Pennsylvania avenue, which he owns, also formerly owned a tract of land upon the westerly side of the same avenue. The tracts on both sides of the avenue run to the ocean. He had sold off tracts on both sides of the avenue to purchasers who have erected expensive dwellings thereon. In all of the deeds there is a covenant that no house or other building shall be erected nearer the line of Pennsylvania avenue than 27 feet. On July 22, 1895, he sold to Richard F. Loper a tract of land on the westerly side of the said avenue, running from a point 972 feet south of Pacific avenue to the ocean. In this deed Loper covenanted for himself, his heirs and assigns, that they would never erect on the said premises any house or other building nearer the line of Pennsylvania avenue than 27 feet. On June 0, 1890, Loper sold a part of the said tract to the Mary A. Riddle Company and James A. Brady, subject to the same covenant. The Mary A Riddle Company and Brady have partly erected on the said 27 feet adjacent to Pennsylvania avenue a structure of the following description: It is built entirely across the 27-foot space on a level with the board walk, which it elevated 7 feet above the ground, and running back from the board walk along Pennsylvania avenue a distance of 100 feet. This floor, for a distance of 66 feet back from the board walk, is covered by a roof extending also entirely across the 27-foot strip. The roof is 14 feet above the floor, with a cornice 2 1/2 feet high. On the westerly side of this structure, and running out to the 27-foot strip, is a building used for a photograph gallery. The structure on its westerly side is attached to this enclosed photograph gallery. The roof on the easterly side is supported by five pillars. The front and rear is open. The structure is to be used for the purpose of hiring and renting for mercantile purposes. The present application is for a preliminary injunction.
Allen B. Endicott, for complainant.
Thomas E. French, for defendant.
REED, V. C. (after stating the facts). The erection of the described structure is a clear violation of the letter of the covenant. The covenant is not to erect a house, or any building other than a house. This is a building, both in its broadest sense as well as in the sense in which the word was employed in the contract. 2 Am. & Eng. Enc. Law, 602. The justification set up in the answer is that Mr. Evans, the owner of property on both sides of Pennsylvania avenue had sold lots by deeds containing covenants similar to the one in the deed to Loper; that grantees under such deeds had built dwellings upon these lots, the main body of which dwellings, while standing back 27 feet from the avenue, have porches or piazzas which encroach upon the 27-foot strip; and that Mr. Evans has permitted the erection and maintenance of these piazzas or porches without objection. It is claimed that this was known by the present defendants when they bought the locus in quo, and that they took title with the understanding that the facts thus stated presented a practical interpretation of what was meant by the term "building" and that by such interpretation the term did not include piazzas having a floor and a roof supported by pillars, which roof covered a space opened on three sides. The answer to this contention is that practical exposition of parties as to the meaning of words in a contract can be resorted to only where there is ambiguity in the term used, and there is no ambiguity in respect to the meaning of the term "building" as used in this covenant. Besides, the evidence of practical interpretation must arise from transactions between the parties to the particular contract to be interpreted, and not between one of these parties and a stranger to that instrument. Evidence of usage, of course, stands upon a different footing, but it has no pertinency in the present instance. But it is said that the complainant himself has upon his own property a seaside hotel, with a porch which runs out to the line of the avenue. This, however, does not preclude him from enforcing his covenant against the defendant either upon the grounds of practical exposition or upon the ground of estoppel. Buck v. Adams, 45 N. J. Eq. 552, 17 Atl. 961. Again, it is to be observed that the suit is not brought by one grantee against another grantee to enforce the observance of covenants designed to carry out a general scheme or plan. It is a suit by a vendor to enforce the observance of his specific covenant, made, so far as appears, for the benefit of himself alone. It matters not what the condition of his own property or of surrounding property was at the time of the execution of the covenant, nor does it matter that the condition was the result of his own acts. He nevertheless had the right, when he sold, to exact the covenant He did exact it for the obvious purpose of preventing an obstruction of the view down to the ocean over the 27-foot strip. For these purposes he bound his grantee not to place any building upon the 27-foot strip. The erection of the board walk and of the incline of the surface pavement up to the board walk did not in the least change the contractual relations between the complainant and his grantees. Again, if it be conceded that the covenant was modified by anything said or done, so that the defendant had the right to build a structure similar to those already built within the limits of the 27-foot strip along the westerly side of the avenue, it would not justify the present proposed structure. The structure is not intended as a piazza to a dwelling house, and all the other structures were such; therefore the covenantwould be modified only to the extent that the violation of its terms bad been permitted by the complainant. He had permitted the erection of piazzas to dwellings. This structure is to be practically a store, and not a piazza. Besides, unlike the other structures, it runs out flush to the line of the avenue. I think the rule to show cause should be made absolute, and injunction should issue.