Opinion
No. 45/183.
05-08-1919
UNION INV. CO. OF NEW JERSEY v. FISKE et al.
N. R. Leavitt, of Elizabeth, for complainant. Berkeley C. Austin, of Cranford, for defendants.
Bill by the Union Investment Company of New Jersey against Harvey N. Fiske and others to enjoin breach of a restrictive building covenant. Decree advised that bill be dismissed.
N. R. Leavitt, of Elizabeth, for complainant.
Berkeley C. Austin, of Cranford, for defendants.
FOSTER, V. C. Complainant seeks the enforcement of a restrictive building covenant affecting certain lots on the Roosevelt Manor tract in Cranford, in Union county.
Complainant and the defendant Harvey N. Fiske own dwelling houses on adjoining lots on this tract; Mr. Fiske's house is on a lot on the corner of Prospect avenue and Claremont place, with a frontage of 75 feet on Prospect avenue and a depth of 150 feet on Claremont place, and his house fronts on Prospect avenue. Complainant's lot fronts on Claremont place and adjoins the Fiske lot in the rear. Defendant has built a garage on the rear inside corner of his lot, having a frontage of about 20 feet and a depth of about 25 feet, and it is built within 40 feet of the line of Claremont place, and within 10 feet of the line of complainant's lot.
The deeds for the respective properties of complainant and defendant made by their common predecessor in title, James Walter Thompson, contain the covenant in question which reads as follows:
"That said party of the second part, her heirs and assigns, shall not at any time hereafter erect * * * any building other than a dwelling house * *（ * and which shall not have the exterior line or lines of the porches thereof nearer to the street line than 30 feet, such restriction however not to apply to the erection of any barn, stable or other outhouse necessary and appropriate to the use of such dwelling house, which it is agreed may be erected on said lands, but not nearer to the street line than 70 feet"
The complaint is that Mr. Fiske violated this latter feature of the covenant by building his garage within 40 feet of the line of Claremont place.
It appears from the agreed state of facts that complainant has also violated this covenant by building the porch on his house within 30 feet of the street line; and that eight other garages have been built on this tract in violation of the 70-foot restriction and that they have been in use from five to fifteen years; and it also appears that complainant did not learn of the erection of defendant's garage until after it was finished.
It further appears that the 70-foot restriction is contained in at least two deeds for two corner lots that are each only 50 feet in width.
Complainant's contention is that the restriction applies to the street on which the lot and house front and also to the side street; and, if this is so, then it will not be physically possible for the defendant, or the owner of any corner lot, on this tract, of the same or smaller width, to ever have a garage on his lot, located 70 feet from the side street line; in fact, under complainant's view of the restriction, defendant could nothave any building on his lot, except his dwelling house, that would be over 5 feet in width. The Roosevelt Manor tract was mapped in 1895, and since then eight other garage buildings have been erected, and most, if not all of them, violate this restriction. It is quite apparent from the facts that the construction of this restriction now contended for by complainant was never contemplated or adopted by the original grantor who inserted this 70-foot restriction in deeds for two corner lots having the width of only 50 feet each; and he and the owners of the lots who built the other garage buildings, and other owners of lots on this tract who have for years acquiesced in the use of those buildings as garages, clearly never placed this construction upon the restriction.
The most that can be said in favor of complainant's contention is that the restriction is vague, indefinite, and uncertain, and complainant's right to have it enforced is at least doubtful.
Without attempting to determine whether the repeated violations of the restrictions are to be regarded as an abandonment of it, as defendants claim, I find that this restriction does not prevent the erection of a garage within 70 feet of the line of both streets; that the restriction was intended to apply only to the street on which the corner lot fronts, and not to the line of the side street. This conclusion is in accord with both the letter and spirit of the covenant; to hold otherwise would be to unreasonably and unwarrantably deprive defendant of the full and complete enjoyment of his property.
Restrictions of this kind are strictly construed (Walker v. Renner, 60 N. J. Eq. 495, 46 Atl. 626), and all doubts are resolved against the party seeking to enforce them (Fortesque v. Carroll, 76 N. J. Eq. 583, 75 Atl. 923; Meaney v. Stork, 80 N. J. Eq. 60, 83 Atl. 492, affirmed 81 N. J. Eq. 210, 86 Atl. 398).
When the right to relief is doubtful, or when the meaning of the restriction is vague or uncertain, as in the present case, an injunction will not issue to enforce it. Meaney v. Stork, supra; Howland v. Andrus, 81 N. J. Eq. 175, 86 Atl. 391.
A decree will be advised that the bill be dismissed.