Barton v. Slifer

• Decision Date: 18 April 1907
• Citation: 72 N.J.E. 812,66 A. 899
• Parties: BARTON et al. v. SLIFER.
• Court: New Jersey Court of Chancery

66 A. 899

72 N.J.E. 812

BARTON et al.

v. SLIFER.

Court of Chancery of New Jersey.

April 18, 1907.

Bill for injunction by Charles S. Barton and another against Levi K. Slifer. Preliminary injunction advised.

The bill is filed by complainants to restrain defendant from the erection of a building in violation of the following restrictive building covenant:

"And also under and subject to the express conditions and restrictions that no building of any description whatever shall at any time be erected within ten feet of the front line of said avenue, nor within four feet of the side lines of said lot (excepting where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within four feet of the outside lines of said lots, nor within ten feet of the front lines thereof), and also that no building, or any part thereof, erected upon the said lot or lots, shall be used or occupied as a livery or sales stable, dye-house, bone-boiling or skindressing establishment, soap, candle, glue, starch, lamp-black, poudrette or fish-guano manufactory, slaughter-house, piggery or tannery. Nor shall any building be used or occupied as a drug store, without the written consent of the said party of the first part hereto."

The act sought to be enjoined consists of the violation of that part of the covenant prohibiting the erection of a building within four feet of the side line of defendant's lot.

In the year 1879 the tract of land which now comprises Ocean City, Cape May county, was a wild beach and was purchased by the Ocean City Association, and laid out in streets and lots with a view to the establishment of a Christian seaside resort. To that end the covenant in question, with other covenants, was adopted by the association and inserted in all deeds made by it as a part of a general scheme adopted by it for the benefit of the entire tract, with the purpose of securing, among other things, a space of at least eight feet between all buildings to afford light, air, view, and fire protection.

The lot now owned by complainants was conveyed by the Ocean City Association to John C. Lake by deed dated February 3, 1885. The lot now owned by defendant was conveyed by the Ocean City Association to Jacob B. Graw by deed dated July 21, 1880. The deed held by defendant expressly recites that the conveyance is subject to the operation of the covenant above referred to.

The northeasterly line of Ninth street forms the southwesterly side line of the two lots in question, and the lot owned by defendant is next oceanward of that owned by complainants.

A building has been erected on the lot owned by complainants, and that building is located on the lot in conformity to the requirements of the covenant. The proposed building of defendant, if erected of the width intended, will operate to obstruct the view and air to complainants' lot to a greater degree than would be the case if the building should be erected in conformity to the restrictive covenant.

This cause has been heard at the return of an order to show cause for a preliminary injunction on amended bill and affidavits and answering affidavits.

Bourgeois & Sooy, for complainants. Thompson & Cole, for defendant.

LEAMING, V. C. (after stating the facts). When an owner of a tract of land lays it out into streets and lots and adopts a restrictive covenant of the nature of the one now in question, with a view to secure the defined conditions named in the covenant for the benefit of the entire tract which he seeks to develop, and inserts the covenant in all deeds as a part of the defined scheme and as an exaction from all purchasers for the benefit of each purchaser, the equitable right to the enforcement of the covenant enures to each purchaser, irrespective of the time of his purchase. Under the conditions named the benefit to be derived from the covenant as a part of the general scheme necessarily enters into the consideration of each purchase, although the covenant may, in terms, only bind each purchaser and his heirs and assigns.

It is urged on behalf of defendant that the present amended bill and annexed affidavits do not afford sufficient evidence of the conditions above stated to warrant the issuance of the preliminary writ sought. While the amended bill and affidavits annexed to it are not as explicit in details as might be desired, I entertain the view that the averments are sufficient to bring complainants' case within the rule stated. The amended bill shows the purchase of the original tract by the Ocean City Association and its subdivision into lots for sale, and the preparation and filing of a map showing the lots thus defined and the adoption by that corporation of "a general building scheme for the purpose of securing the unobstructed view and light and air," and...