Baker v. Lunde

• Decision Date: 22 July 1921
• Citation: 114 A. 673,96 Conn. 530
• Court: Connecticut Supreme Court
• Parties: BAKER et al. v. LUNDE et al.

114 A. 673

96 Conn. 530

BAKER et al. v. LUNDE et al.

Supreme Court of Errors of Connecticut.

July 22, 1921

[Copyrighted Material Omitted]

Appeal from Superior Court, New Haven County; Gardiner Greene and John P. Kellogg, Judges.

Action by Helen L. Baker and others against Michael Lunde and others to restrain defendants from building a dwelling house designed to be occupied by two families upon a lot in the city of New Haven, in alleged violation of a right in the nature of an easement which the plaintiffs claim to exist in the owners of neighboring lots to restrain the owner of the defendants' lot from building a house on their lot other than a house designed to be occupied by one family. A temporary injunction issued, and a motion to dissolve a temporary injunction was denied, and action tried by the court, facts found, and judgment rendered for the plaintiffs for a permanent injunction, and appeal by the defendants. No error.

On August 16, 1915, Israel Gordon et al. purchased a vacant parcel of land in New Haven consisting of the square (excepting a lot owned by one White) bounded northerly by Westwood road, easterly by West Rock avenue, southerly by Chapel street, and westerly by Central avenue. The White lot had a frontage of 50 feet on West Rock avenue, and a depth of 182 feet, and was held free from restrictions. The square was approximately 300 feet by 290 feet in extent.

Subsequent to the conveyance of their interest in square by the two deeds, Exhibits B and A, on October 8, 1915, and March 9 1916, respectively, the grantees in said deeds divided the land into 13 lots, lots 1 to 6, inclusive fronting on Central avenue, lot 7 on Westwood road, lot 8 on Chapel street, and lots 9 to 13, inclusive, on West Rock avenue. On October 15, 1915, Gordon et al. conveyed the land later included in lots 9 to 13, inclusive to John Igo et al., and this deed, Exhibit B, contained the following provision:

" Said premises are conveyed subject to the following restrictions, viz.: That there shall not be erected on said land any building other than a private dwelling house and a private garage appurtenant thereto; that such dwelling house shall not be occupied by more than one family or used for any other purpose than a private dwelling house, the first cost of which dwelling house shall not be less than forty-five hundred ($4,500) dollars, and that no board fences are ever to be built on any of the land herein described and conveyed."

On March 9, 1916, Gordon et al. conveyed to Morris J. Deutsch et al. their remaining interest in said square, consisting of the land later included in lots 1 to 8, inclusive. This deed, Exhibit A, contained the following provision:

" Said premises are conveyed subject to the following restrictions, viz.: That there shall never be erected on said land any building other than private dwelling houses and private garages appurtenant thereto on each lot, which house is to cost not less than $4,500, that such dwelling house shall not be occupied by more than one family, and that no board fences are ever to be erected on any of the land herein described and conveyed."

Gordon et al. purchased this vacant land in the square to resell at a profit for use as building lots, and did so sell it. The restrictions in Exhibits A and B were inserted and intended by the parties for the common and mutual benefit of all owners of lots carved out of the respective pieces sold, and of all who should become lot owners.

The defendants' land is the lot No. 13, as above designated. There is no restriction on the owners of any of such lots preventing a further subdivision of the lots. Igo et al. gave a purchase-money mortgage to Gordon et al. on October 8, 1915. The mortgage did not mention the restrictions. Gordon et al. later released lots 9, 10, 11, and 12 from this mortgage lien.

The plaintiffs Baker, Ward, and York, own respectively lots 8, 5, and 4 as above designated, and the plaintiffs Moffatt and Wheeler own respectively lots 10 and 11. After October 8, 1915, Igo et al. mortgaged lots 11, 10, 12, 9, respectively, to other parties, subject to the restrictions in Exhibit B, and later Gordon et al. released their purchase-money mortgage on such lots by quitclaim deeds, without mentioning the restrictions.

On February 8, 1918, Gordon et al. recoverred title to lot 13 by the foreclosure of their purchase-money mortgage from Igo et al., and on December 22, 1918, deeded the same to the defendants by warranty deed without mention of restrictions. The defendants at the delivery of this deed had no knowledge of any restrictions on the land except such as the law imputes from the deeds of record.

On March 9, 1916, Deutsch et al. gave a purchase money mortgage to Gordon et al. on the land conveyed by Exhibit A. This deed contained no mention of restrictions. After March 9, 1916, Deutsch et al., or their grantee, mortgaged to various parties respectively lots 8, 7, 5, 2, respectively, subject to the restrictions contained in Exhibit A. Gordon et al. later released these lots and others from their purchase-money mortgage, stating in the release that it was not to affect the restrictions in Exhibit A.

On August 15, 1917, Deutsch et al. conveyed by deed to A. Podoloff lots 1 to 8, inclusive, in trust for many creditors, with power to sell, mortgage, and care for the property. Later, Podoloff, trustee, sold lots 3, 4, 7, 8, 6, subject to restrictions, and lot 1 without mentioning restrictions.

At the time of the institution and trial of this suit, and for a long time prior thereto, all the dwelling houses respectively located on lots designated as lots 1 to 12, inclusive, were single family dwelling houses, and occupied and used by one family only, and there were no two-family, double or duplex dwelling houses, and no dwelling houses occupied or used by more than one family, on the lots 1 to 13 inclusive, and, so far as the evidence showed, there have never been any but one-family houses on said lots.

Many owners of lots in the square, including all the plaintiffs in this action, knew before purchasing or acquiring their respective lots of land that the land in the square was subject to these restrictions. This knowledge was an inducement to them to purchase or acquire their land, and was relied upon by them in so acquiring or purchasing the same.

The defendants at the time of the issuance of the temporary injunction were about to build, and now desire to build, on lot No. 13, a wooden structure of this character, viz.: A single building of wood having one continuous roof with a solid party wall extending from the bottom of the cellar to the roof. This party wall has no doors, openings, or other means of communication between the two parts of the building. Each side of the party wall has separate entrances and exits. The building on each side of the wall is designed to be a complete abode for one family. Each family is to have separate plumbing and toilet facilities, and each side of the party wall is designed to be a complete, independent, and separate abode for one family. Such a house is known as a duplex house.

Frank S. Bishop, of New Haven, for appellants.

J. Dwight Dana and David L. Daggett, both of New Haven, for appellees.

CURTIS, J.

The court did not find that Gordon et al. divided their land in the square into lots on a map made public under a plan disclosed thereon or therewith to develop the property as a restricted residential district to be secured by a covenant embodying the restrictions to be inserted in each deed to a purchaser, which covenants appear by the writings or surrounding circumstances to be intended for the benefit of all the land, and that each purchaser is to be subject to and have the benefit of the restrictions, and that such a covenant...