Armstrong v. Leverone

• Decision Date: 28 January 1927
• Citation: 105 Conn. 464,136 A. 71
• Court: Connecticut Supreme Court
• Parties: ARMSTRONG ET AL. v. LEVERONE.

136 A. 71

105 Conn. 464

ARMSTRONG ET AL. v. LEVERONE.

Supreme Court of Errors of Connecticut.

January 28, 1927

Appeal from Superior Court, New London County; Leonard J. Nickerson Judge.

Action by Benjamin A. Armstrong and others against Antonio Leverone to restrain defendant from maintaining a store or place of business on premises in violation of building restrictions. From a judgment for plaintiffs, defendant appeals. No error.

In 1892 Thomas M. Waller and James Hislop purchased a tract of land known as the Ocean Beach property and subsequently conveyed it to the Post Hill Improvement Company, a corporation. On May 5, 1893, the corporation conveyed to the city of New London a large portion of the tract in question lying between Bentley avenue and the shore of Long Island Sound, but reserving to the grantor, out of the tract so conveyed, a strip of land about 1,320 feet in length and 110 feet in depth, extending along the beach front and bounded north on Bentley avenue. The strip so reserved was divided by the corporation into 50 lots, each 25 feet wide, one lot of 50 feet frontage, and two public ways across the strip, each 10 feet in width. After the conveyance to the city, the corporation sold all of the 50 25-foot lots, the same being subscribed for by purchasers and the choice being determined by lot at a meeting of the subscribers. Each of the deeds of these lots specified the lot by number as " " designated on the strip marked ‘ Reserved’ on a map of said tract * * * filed in the town clerk's office," and also particularly bounded and described the lot in question. Each deed contained the following provision:

" This conveyance is made, given and received upon the condition that there shall not be erected or maintained without the consent of the owners of three quarters of the lots on said strip any building or part of a building within 10 feet of the southerly or northerly side of the land herein conveyed, or any building costing less than $350, or any building to be used as a public bathhouse, store, restaurant saloon, or for any other public purpose, or any building or shed to be used for horses, provided the grantors hereof furnish, at a cost of $5 a year, a suitable shed for the shelter of horses and carriages for each of the owners of lots on the strip aforesaid, who may desire such accommodations."

As a part of its general plan of development, the corporation also sold lots on the north side of Bentley avenue, with restrictions which, however, were limited to a period of 10 years.

After the sale of these 50 lots, there remained unsold of the strip so reserved from the land deeded to the city the lot of about 50 feet frontage on the beach and 110 feet deep, located at the easterly end of the strip. This was then retained by the corporation with the idea that it might eventually be used for the building of a casino or clubhouse, for the use of the owners of the other lots, and it was later marked " Casino Lot" on maps of the development. It was not used for that purpose, however, and in 1896, by deeds dated October 24th and November 16th, the Post Hill Improvement Company conveyed to Patrick H. Fitzgerald two tracts of land, together comprising the southerly portion (about one-half) of this casino lot, having a frontage on the beach of about 49 feet and a depth, for the most part, of 56 feet. The first of these deeds contained the following provision, among others:

" This conveyance is made, given, and received upon the condition that there shall not be erected or maintained without the consent of the owners of three-fourths of the lots on the strip marked ‘ Reserved Strip’ on a map heretofore filed by the grantors in the office of the town clerk, any building or part of a building within 10 feet of the northerly or southerly side of the land herein conveyed, or any building costing less than $350, or any building to be used as a public bathhouse, store, restaurant, saloon, or any other business purpose."

A similar provision was also included in the second deed. The first deed also provided that:

The grantee " shall have the right to lease by the year bathhouses on the lot herein conveyed, without the privilege of subletting."

On June 4, 1894, the corporation sold to Edward S. Neilan and Patrick Dorsey, separately, cottage lots situated in the section northerly of Bentley avenue and, in connection therewith, conveyed to each a lot, numbered 1 and 7, respectively--

" of the Park Cottage bathing house lots * * * being 10 feet long by 6 feet in depth. The same to be used for private bathing houses only and said houses to be not more than 15 feet in height and to be built in conformity to a plan of the Post Hill Improvement Company. No change of the use of said lot * * * or of the said height of the building to be made without the consent of the grantors and of owners of lots between said lot and the beach."

These two bathing house lots adjoined the northerly side of the lot conveyed to Fitzgerald on November 16, 1896.

Subsequently the Post Hill Improvement Company made use of the portion of the land immediately north for private bathing houses, which were rented for not less than one season to private persons, but no building was rented for or used as a public bathhouse.

In October, 1905, Arthur H. Wilkinson obtained from the owners of more than three-fourths of the lots of land on the reserved strip written consent--

" to sell confectionery, ice cream, soda water, pop corn, cigars, etc., on the lot of land situated on the southwest corner of Bentley avenue and the main thoroughfare to the beach."

At approximately the same time, October 6, 1905, the Post Hill Improvement Company, by quitclaim deed, conveyed to Wilkinson--

a " certain lot of land with the buildings thereon standing, * * * bounded and described as follows: Northerly by Bentley avenue; easterly by land of the city of New London; southerly by land of the estate of Patrick H. Fitzgerald; and westerly by Charles D. Boss."

The land so conveyed was situated northerly and easterly of the Fitzgerald lot and in the northeast corner of the reserved strip, and the description included the bathing house lots which had been conveyed to Neilan and Dorsey.

On May 19, 1920, trustees of the estate of Patrick H. Fitzgerald, deceased, conveyed to the defendant the same land conveyed to Fitzgerald by the deeds of October 24 and November 16, 1896, above mentioned. The exceptions from incumbrances in the trustees' deed included--

" any valid restrictions referred to in deed of Post Hill Improvement Company to Patrick H. Fitzgerald, except in so far as the same have been removed by lapse of time, changed conditions of Ocean Beach, or otherwise."

Afterward, on June 28 and August 13, 1920, the defendant obtained quitclaims of the Neilan and Dorsey bathing house lots.

In August, 1920, the defendant erected on the Fitzgerald land a wooden structure and started therein a store for the sale of merchandise. The complaint in this action was served October 21, 1920. About a year after the commencement of this suit, the defendant removed the first structure and erected a building 2 1/2 stories in height, the lower floor of which he has since used and is now using as a public store for retain mercantile business.

On April 21, 1921, the heirs and devisees of Wilkinson conveyed to the defendant the premises conveyed to Wilkinson by the deed of October 6, 1902. Other pertinent facts found by the trial court are mentioned in the opinion.

Defendant, claiming that complainants were not damaged by violation of building restrictions, must clearly establish such fact.

Arthur T. Keefe and John C. Geary, both of New London, for appellant.

Charles B. Waller, of New London, for appellees.

HINMAN, J. (after stating the facts as above).

Many of the reasons of appeal relate to attempted corrections of the finding by the excision of facts essential to the plaintiffs' cause and the substitution of statements apposite to the defendant's contentions. Thorough perusal and analysis of the finding and draft finding, and the evidence which is before us, although the court also viewed the premises, fails to disclose that any intrinsic fact has been found without evidence, or that any material fact sought to be inserted in the finding, and not already present in substance, is admitted or undisputed. Such of the claimed corrections as appear to require specific discussion are adverted to hereafter.

It is found from abundant evidence that it was a part of the general plan of development, by the Post Hill Improvement Company, of its land at Ocean Beach, that the land within the so-called " reserved strip" was to be a restricted summer cottage colony, used for...