Opinion
05-06-1922
SHMIDHEISER et al. v. STATES AVE. CONST. CO. et al.
Norman Grey, of Camden, for complainants. C. L. Cole, of Atlantic City, for defendants.
Bill by Louise Shmidheiser and others against the States Avenue Construction Company and others, for injunction to enforce restrictive building covenants. On final hearing. Decree for defendants.
Decree affirmed, 121 Atl. 521.
Norman Grey, of Camden, for complainants.
C. L. Cole, of Atlantic City, for defendants.
LEAMING, V. C. I think it unnecessary to give specific consideration to any feature of this suit other than the single undisputed fact that for over 25 years the locus in quo has been occupied by stores facing on the boardwalk and extending to the street line of States avenue.
Defendants have in no sense abandoned the use of these lots for the purposes for which they have been used during that long period of time. The recent demolition of the buildings was wholly for the purpose of reconstruction, and can no more be treated as an abandonment of the right to maintain similar store buildings upon the lots than could any ordinary repairs or improvements such as have been made from time to time in the past The tearing down was but a part of the process of reconstruction, and in no sense an abandonment of the use of the lots for stores flush with the avenue. Even though it be assumed that in 1899 the right of enforcement of the restrictive covenants may have existed, save for the delay of interested parties in enforcing such right, I am yet unable to conclude that the right of enforcement can be said to have been revived by a rebuilding operation which in no way modifies the use to which the lots are to be thereby devoted, even though the rebuilding operations may include tearing down the old buildings and the substitution of new buildings in their place similarly located and for a similar use. Nor does it seem material whether the adjudication in 1899 was based upon laches or estoppel. The rights of the successors in title of those complainants, as such successors in title, can rise no higher than were the rights of those complainants at that time, and the rights of the successors in title of those defendants, as such successors in title, can be no less than were the rights of those defendants at that time, and, unless there has been a real cessation of the use then complained of, or an essentially new use, the former decree would appear to be final in its effect as between the respective successors in title of the parties to that decree.
No suggestion of adverse possession has been made in the argument; but I find it difficult to conclude that 25 years' continuous use by defendants under claim of right for purposes clearly adverse to the existence of rights of the nature of those here asserted is not destructive of such rights.
A decree will be advised denying the restraint sought.