Brigham v. H. G. Mulock Co.

• Decision Date: 01 July 1908
• Citation: 74 N.J.E. 287,70 A. 185
• Parties: BRIGHAM v. H. G. MULOCK CO.
• Court: New Jersey Court of Chancery

70 A. 185

74 N.J.E. 287

BRIGHAM

v. H. G. MULOCK CO.

Court of Chancery of New Jersey.

July 1, 1908.

Suit by Martin E. Brigham against the H. G. Mulock Company. Decree for complainant.

Thompson & Cole, for complainant.

Bourgeois & Sooy, for defendant.

LEAMING, V. C. The bill does not disclose whether the deeds of complainant and defendant and the several deeds in their respective chains of title contain the restrictive covenants sought to be enforced, or the extent to which defendant may be charged with notice of these covenants; but as the right of complainant to enforce against defendant the observance of the restrictive covenants in question was conceded by defendant's counsel at the hearing, provided complainant had not lost the right by reason of his own violation of the covenants, or by reason of acquiescence in the violation of the covenants amounting in effect to their abandonment, the question of the bar to complainant's rights, as urged by defendant, will alone be considered.

The case of Collins v. Waters (not officially reported) 70 Atl.? determines that the 20-foot building line covenant here in question applies to both the front and side street lines of corner lots.

The case of Chelsea Land Company v. Adams (N. J.) 66 Atl. 180 (another suit touching the covenant now in question), must be regarded as conclusive as to the right of that company to enforce in this court the covenant against the erection of a building nearer than 20 feet from the street line. That was a case in which the town site proprietor, owning property in all parts of the tract, had stood by and permitted violations of the covenant without complaint. While that was held to operate as a bar to the right of that company to prevent further violations of the same covenant, the adjudication clearly has no application to the rights of the owner of a single lot who may not have so acquiesced. It would scarcely be possible for any single violation of the covenants to occur without the interests of the original land company being directly affected; but the owner of a single lot may have no concern whatever in a violation of the covenants on a part of the tract distant from his lot. I am convinced that any claim of bar asserted against the rights of an owner of a single lot by reason of acquiescence in the violation of restrictive covenants of this nature must be measured by the relation of the asserted violation to the individual lot. This view was taken by me in Barton v. Slifer (N. J. Ch.) 66 Atl. 899, in harmony with the views expressed by Vice Chancellor Emery in Morrow v. Hasselman, 69 N. J. Eq. 612, 61 Atl. 369, 371. The title to the lot now owned by complainant passed from the Chelsea Beach Company in the year 1889. Clearly no subsequent failure upon the part of that company to enforce similar covenants in behalf of its remaining unsold lots should operate to destroy the right of the owner of that lot to enforce in behalf of that lot the covenants which defendant now concedes to have been made for the benefit of that lot, pursuant to a general building plan.

The covenants in question provided that no building shall be erected within 20 feet of the front property line of any street, except on Atlantic avenue, or within 5 feet of the side line of any lot, and also that "not more than one building be built or erected upon each lot for dwelling house purposes." The bill asserts that a building is about to be erected by defendant at the northwest corner of Artie and Chelsea avenues, across the street from complainant's property, and is to be erected with the main body of the building within 10 feet of Artie avenue, and the porch within 10 feet of Chelsea avenue, and that the first story of the main body of the building will project over the porch and be less than 20 feet from...