Opinion
No. 45/368.
08-14-1919
O'DEA et al. v. UGNON et al.
Addison Ely, of Rutherford, for complainants. William O. Mickel, of Paterson, A. D. Sullivan, of Passaic, and Thomas Moore Simonton, of Paterson, for defendants.
Suit for injunction by Daniel O'Dea and others against Claudius Ugnon and others. Bill dismissed.
Addison Ely, of Rutherford, for complainants.
William O. Mickel, of Paterson, A. D. Sullivan, of Passaic, and Thomas Moore Simonton, of Paterson, for defendants.
FOSTER, V. C. Complainants in this cause seek to enjoin defendants from violating what has been designated during the hearing as a condition, or a restrictive covenant, which by its terms prohibits the erection of a factory building on certain premises in the borough of Rutherford. The controversy arises out of the following circumstances:
About 1867 the Mt. Rutherford Company purchased a tract of land for development purposes. It was laid out in streets and plots, maps were prepared and a scheme of development adopted, and plots were offered for sale. The company was dissolved in about 1874. Prior to taking steps for its dissolution, it had conveyed part of its property—117plots—by 90 deeds containing, in whole or in part, the conditions or restrictions in question. In 8 of these deeds, all or some portion of the restrictions were omitted; in 7 others, the prohibition against "shops" was omitted; and in 1, the word "store" had been eliminated. In connection with its dissolution, the company made 48 additional deeds to its stockholders, for 348 plots, from all of which the condition, or restrictions, was omitted.
The pertinent part of the restriction is as follows:
"And it is a further condition of this indenture that the said property is sold and purchased subject to the rules and regulations of the Mt. Rutherford Company hitherto established, and that the purchaser, in making improvements thereon, shall conform to * * * building lines," etc. "And further that the purchaser shall not erect on said property any store, shop, or factory, * * * nor in any way oppose the company in their endeavors to make the locality desirable for a pleasant, quiet, residence for persons of taste."
About June, 1918, defendants began the erection of a large silk mill on their property, to cost about $80,000. In the latter part of July, complainants, through counsel, called attention to the restrictions and objected to their violation. About August 22d the bill was filed, and at that time the factory was about half completed.
Defendants insist the restriction is a condition, and not a restrictive covenant, and that, being a condition, complainants are not entitled to ask the aid of the court to prevent its breach, it being by its express terms personal to the grantor, the company, and solely for its benefit; that by its terminology it is limited in its terms to the purchaser alone, and that no reference is made therein to the heirs or assigns of the grantor or grantee; that Mr. Van Winkle, the original purchaser, was the only person who could be held liable for a breach of the condition, and that it does not by its terms inure in any event to the benefit of complainants, particularly, as the acts complained of are those of a subsequent grantee, and also because there is no right of re-entry reserved to the grantor.
Assuming this contention to be warranted by the case of Wootton v. Seltzer, 83 N. J. Eq. 103, 90 Atl. 701, I prefer to rest the determination of the case on other grounds, as I find it clearly established by the evidence that, whatever scheme of development was sought to be establishd by the company in connection with its property, it was totally abandoned by the company and by those who acquired its property. A very large part of the property has been for many years past occupied by the business section of Rutherford, which is only a block away from the premises in question; and in the immediate vicinity of complainant's premises there are, and have been for years prior to complainants' purchase of their property, buildings erected and businesses conducted in violation of the express terms of the restriction—such as a chicken yard, a blacksmith shop, a steam laundry, a barn, a butcher shop, a paint shop, a bottling establishment, storage houses, and a morgue—and that the buildings are cheap and inexpensive, and are generally used for business conducted on a small and limited scale.
Complainants' property on part of plot No. 386 is a conspicuous example of the manner in which both the letter and spirit of the restrictions have been abandoned and violated Their building is a six-family tenement house, three stories high on Orient Way, and four stories in the rear. It is built within 12 feet of the sidewalk line, instead of 30 feet, prescribed by the company's regulations. All, or nearly all, other dwellings in the neighborhood are one-family houses, and in the rear of this tenement house, in addition to defendants' factory, there has been for years a retaining wail on Feronia Way, opposite the factory, built to retain the bank of the right of way of the Erie Railroad, and this bank is about 20 feet high. Across the railroad tracks are located the old power house and car barns of the street railway and also various manufacturing plants. The grade of Feronia Way is much below that of Orient Way, and property on Feronia Way, by rea son of its location and surroundings, is and always has been unsuitable for residential purposes.
The proof is convincing that for 50 years the restrictive scheme—if it can be correctly called a scheme—in connection with this property has been formally and actually abandoned by the company and its grantees; that the character of the neighborhood is wholly different from that contemplated in 1871, when the restrictions were imposed; that complainants have not only acquiesced in treating the restrictions as abandoned, but that they have actually participated in their violation; and no satisfactory reason has been suggested that would justify a court of equity in reviving the restrictions for complainants' benefit. The facts bring the case within the rule recognized and applied in the following, among other, cases: Page v. Murray, 40 N. J. Eq. 325, 19 Atl. 11; Mulligan v. Jordan, 50 N. J. Eq. 363, 24 Atl. 543; Chelsea Land & Improvement Co. v. Adams, 71 N. J. Eq. 771, 66 Atl. 180, 14 Ann. Cas. 758; and these facts are to be considered in the manner pointed out by the Court of Errors and Appeals in Fortesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. 923, Ann. Cas. 1912A, 79, where it was stated that, in cases of this class, the right of complainant must be clear before a court of equity can be justified in restricting another in the uses to which he may lawfully put his property.
As the right of complainants to the relief they seek has not been clearly established I will advise that the bill be dismisssd.