Opinion
Submitted June 2d 1947.
Decided September 12th, 1947.
1. The residential neighborhood scheme sustained in Humphreys v. Ibach, 110 N.J. Eq. 647, is still applicable to defendant's lot. There being no proof that the restrictions here in question have not been observed by all lot owners affected thereby, and no important change having occurred in the neighborhood building situation since that case was decided, other than the erection of defendants' structure, held, defendants have violated the restrictions.
2. Complainants are not in laches and therefore estopped from asserting the rights for which they contend. They gave defendants timely notice as soon as they had reason to suspect that the nature and purpose of defendants' proposed construction might be in violation of the restrictions, and at that time actual work had not proceeded beyond the laying of the footings for the foundations and the placing thereon of some wall blocks.
3. Besides notice from complainants, defendants had record notice of the restrictions on their lot and the rights of adjacent property owners thereunder. And they were bound by the decree entered against their predecessor in title upholding the restrictions.
On appeal from a decree of the Court of Chancery.
The following opinion was filed in the Court of Chancery:
"The defendants have erected on their lot No. 7 in block 238 as shown on map filed in the Bergen County clerk's office entitled `Map of property of the Est. of W.W. Phelps, Teaneck Development, Section No. 3, Teaneck, N.J.,' a detached one-story concrete block building, the front line of which is but ten feet from the northerly line of Cedar Lane as shown on said map, the said building being intended and actually in use for the purpose of tailoring, repairing, dry-cleaning and pressing clothes. Complainants contend that the structure violates building restrictions to which defendants' title to said lot is subject, and they seek a decree commanding defendants to remove the building.
"The Estate of William Walter Phelps (hereinafter called Phelps Estate), owned a tract of land in Teaneck which included defendants' lot. The Phelps Estate caused two maps to be made of the tract laid out in blocks and lots, and thereafter made conveyances by reference to said maps. The maps differ only in block numbers and the one generally referred to in conveyances is the one stated in the foregoing paragraph. That map bears date September 8th, 1924, and was filed in the Bergen County clerk's office November 1st, 1924. It shows a street called Frances Street laid out through the tract running east from Heasley (now Palisade) Avenue to Westfield Avenue (now Queen Anne Road), the lots on the north side of Frances Street being in block 238A and those on the south side of that street being in block 238. The lots in block 238 have a depth of 196.68 feet and extend from the southerly line of Frances Street to the northerly line of Cedar Lane.
"Prior to filing the maps the Phelps Estate had made some conveyances of land on the westerly end of the tract and those conveyances left the estate owning lots 3 to 15, inclusive, in block 238 and lots 19 to 30, inclusive, in block 238A, all fronting on Frances Street; also seven lots fronting on the westerly line of Queen Anne Road of which three (lots 16, 17 and 18) are in block 238A and four are in block 238. It appears that in or about 1924 the Phelps Estate formed the intention of developing lots 3 to 15 in block 238 and lots 16 to 30 in block 238A under a residential neighborhood plan by making conveyance of the lots with restrictions limiting their use to dwelling purposes, and thereafter in all conveyances of the lots it inserted restrictions as to the number and cost of dwellings to be erected on each lot and concerning garages and outbuildings and against the use of the lots for stores and other designated purposes, the form of so much of said restrictions as concerns this suit being hereinafter stated.
"In April, 1930, a bill was filed in this court by George W. Humphreys and others who were owners of lots 3 to 15 in block 238 against Emil Ibach and others who were owners of lots 16 to 30 in block 238A, to quiet complainants' title against said restrictions, it being the contention of complainants in that suit that because of variations in the restrictions and because conditions in the neighborhood had so changed it was inequitable to enforce the restrictions. The result of that suit was the court's conclusion that such of the restrictions as are in issue in this suit were operative and enforceable and the bill of complaint was dismissed as to the answering defendants and a decree was entered accordingly June 8th, 1931. On appeal the decree was affirmed ( Humphreys v. Ibach, 110 N.J. Eq. 647 ).
"One of the complainants in that suit was Martha Polyblank, to whom the Phelps Estate had conveyed the lot defendants now own by reference to the earlier one of the two maps it had filed, that conveyance being made expressly subject to restrictions attaching to and running with the land limiting the erection on said lot to one dwelling house to cost not less than $5,500 and also providing that:
"`No garage or outbuilding shall be erected within 60 feet of any street line unless directly connected with a dwelling house.
"`No building shall be erected or used on said premises for the purpose of or as a saloon, hotel, store, market, gasoline and oil service station, public garage, factory or for any dangerous, noxious or offensive purpose whatever.'
"The bill of complaint was dismissed as to Martha Polyblank, thus denying her prayer for a decree that the defendants in that suit had no rights which they could enforce against her lot under the restrictions here under consideration. One of the complainants herein (McClelland) and the predecessors in title of all other complainants herein were defendants in the Humphreys suit who opposed granting the complainants therein the relief they there sought. Subsequently Martha Polyblank conveyed her lot to the defendants herein by deed which recited that it was `subject to restrictions of record if any and municipal and zoning ordinances.'
"Defendants urge that the restrictions should not be enforced against them because the north side of Cedar Lane between Palisade Avenue and Queen Anne Road is unfit for any purpose other than a business use and also because the character of the neighborhood has changed since 1931. Practically all the facts now urged on behalf of defendants to show change in the conditions which existed when the restrictions were imposed, were considered in Humphreys v. Ibach, namely, increased business traffic on Cedar Lane, the growth in the number of stores and similar business establishments on Cedar Lane on unrestricted property east and west of the Phelps Estate tract and on the opposite side (also unrestricted) of Cedar Lane, as well as the existence of business buildings on Palisade Avenue, and the court in that case concluded that such proof fell far short of showing such a change in neighborhood conditions as would invalidate the restrictions. There is no proof in the instant case that the restrictions here in question have not been observed by all owners of lots affected thereby and the testimony shows that no important change has occurred in the building situation in the neighborhood as it existed in 1931 with reference to lots in blocks 238 and 238A, other than the erection of defendants' structure, and there has been no change in the Cedar Lane front of lots which makes the restrictions less applicable to those lots than they were when they were imposed. The result is that the residential neighborhood scheme which was sustained in Humphreys v. Ibach is still applicable to defendants' lot and that defendants have violated the restrictions which were designed to insure the perpetuation of that scheme, by erecting on their lot an outbuilding, a building which is separate and apart from the dwelling erected on the lot and which has no place in a restricted residential neighborhood and which is nearer the line of Cedar Lane than 60 feet and is not connected with a dwelling house and which is a building for use as a store where services of the nature described in the first paragraph of these conclusions are sold; consequently the complainants are entitled to the relief they seek ( Palmer v. Circle Amusement Co., 130 N.J. Eq. 356 ).
"Defendants urge that complainants failed to take proper and timely action for enforcement of their rights and allowed defendants to expend large sums of money in the erection of their building before protesting such erection, therefore complainants are in laches and should be held estopped from asserting the rights for which they now contend. Excavation for defendants' building was begun about the middle of February, 1946, and about March 8th complainants notified defendants in writing that they had been informed that defendants proposed to erect a building in violation of the restrictions; that complainants objected and warned the defendants to proceed at their peril. I think that notice was given as soon as complainants had reason to suspect that the nature and purpose of the proposed construction might be in violation of the restrictions. At the time of such notice actual work on the building had not proceeded beyond the laying of footings for the foundations and the placing thereon of some wall blocks. Defendants allege that at that time their expenditures and obligations in connection with the erection of the building were $5,500, but instead of stopping the work and endeavoring to minimize their loss they pushed the work speedily and complainants filed their bill May 15th, a few days before the building was completed. Beside notice from complainants defendants had record notice of the restrictions on their lot and of the rights of adjacent property owners thereunder and they were bound by the decree of this court entered against their predecessor in title upholding the restrictions. They cannot complain that complainants were not sufficiently diligent in notifying defendants of their rights under the restrictions or in bringing this suit to preserve those rights ( Bridgewater v. Ocean City Railroad Co., 62 N.J. Eq. 276 -292; affirmed, 63 N.J. Eq. 798; Schreiber v. Drosness, 100 N.J. Eq. 591-596)."
Mr. George F. Losche, for the appellants.
Mr. Louis G. Morten, for the respondents.
The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Fielder, filed in the Court of Chancery.
For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, COLIE, WACHENFELD, EASTWOOD, BURLING, WELLS, DILL, McGEEHAN, McLEAN, SCHETTINO, JJ. 13.
For reversal — None.