Bassett v. Pepe

• Decision Date: 07 May 1920
• Citation: 94 Conn. 631,110 A. 56
• Court: Connecticut Supreme Court
• Parties: BASSETT v. PEPE.

110 A. 56

94 Conn. 631

BASSETT v. PEPE.

Supreme Court of Errors of Connecticut.

May 7, 1920

Appeal from Superior Court, New Haven County; Donald T. Warner Judge.

Suit by Lula E. Bassett against Frank Pepe. Judgment for defendant and plaintiff appeals. No error.

Some time prior to 1901 a land company purchased a large tract of land on the shore in Milford, at what is known as Laurel Beach, and proceeded to develop it for summer residence purposes. Streets and building lots of various sizes and about 300 in number were laid out and mapped. All the conveyances of these lots to purchasers, save only of a few in a single section at one end of the tract, contained a restrictive covenant forbidding the erection or maintenance of any building or structure within three feet of the side lines, or the erection or maintenance of any barn or outhouse on the land conveyed. The defendant is the owner of a lot within this tract held by him under a deed containing this restriction. The plaintiff is the owner of an adjoining lot.

The land company's purchase, development, and lay-out of the tract and its imposition of the conditions in the restrictive covenant upon purchasers from it were in the execution of a development scheme whose purpose was to promote " the establishment and maintenance of a high-class residential summer colony, in which the buildings should be kept at uniform distances from the street lines and the whole community kept free from foul odors, unsightly and obnoxious buildings, and shelters for liquor, lewdness, and other improper and obnoxious practices."

The original purchasers and occupiers of lots were, and those who have since been attracted to locate their summer houses on the tract are, persons in comfortable financial circumstances, and have become largely an automobile owning class. With many of them automobiles constitute a necessary means of transportation, as formerly horses and carriages did. When the defendant purchased his lot it already had a house upon it but no garage or other accommodations for housing an automobile. To provide such accommodations he began the erection of an annex to the house designed for that purpose and planned to be permanently attached to the rear of the house and form a part of it. The attachment was to be about ten feet in length upon one side of the house and eight feet on another. At all points the new construction was to be located more than three feet distant from the division line between the parties. The work of construction had proceeded but a little way when a temporary injunction issued in this action put a stop to its continuance. The structure planned and begun was one to be built in a substantial manner and would not have been unsightly in form or appearance.

The court ruled and held that the proposed structure was neither a barn nor an outhouse, in the strict sense of those words that it was neither within their meaning and intent as used in the restrictive covenant in question, and that its erection and maintenance would not be in violation of either the letter or spirit of that covenant, and for those and other incidental reasons assigned dismissed the complaint. It also found and held that it would not be a nuisance at common law.

Other facts contained in the finding, possessing no importance as related to the discussion contained in the opinion and its conclusion, are omitted.

Carl Foster, of Bridgeport, for appellant.

James E. McKnight, of Waterbury, for appellee.

PRENTICE, C.J.

The plaintiff in his complaint sought to prevent the erection of the garage structure in question for three reasons: (1) That it was to be located within three feet of the division line between the plaintiff and the defendant in violation of a restrictive covenant contained in the deed under which the latter holds; (2) that it would constitute an outhouse located upon the defendant's property in violation of a provision in that covenant forbidding such erection; and (3) that it would constitute a common-law nuisance. The trial court has effectually disposed of the first of these reasons in finding as a fact that the proposed structure would be in its every part more than three feet distant from the plaintiff's line. It has also, with equal effect, disposed of the third reason in holding, as it did with palpable correctness, that the planned structure, located as it was to be and used for its intended purpose, would not constitute a nuisance at common law. We do not understand that plaintiff's counsel seriously questions either of these propositions. Certain it is that they are not open to such question upon this record. The second reason assigned in support of the plaintiff's contention that the proposed structure would be an unlawful one as constituting an outhouse remains to be considered, and that is the fundamental one upon which the plaintiff relies in support of his appeal.

The portion of the restrictive covenant relied upon forbids the erection and maintenance upon the defendant's property of any barn or outhouse. Clearly the proposed structure intended for the uses of a garage would not be a barn, within any accepted use of that term of which we are aware. If its erection is forbidden by the restriction it must be because it would constitute an outhouse, within the meaning of that term as used in it.

The term " outhouse" is one whose meaning in the law has been brought to the attention of courts for the most part in criminal proceedings. It has become important in prosecutions for arson and burglary to observe and define the...