Bickell v. Moraio

• Citation: 167 A. 722
• Court: Supreme Court of Connecticut
• Decision Date: 18 July 1938
• Parties: BICKELL et al. v. MORAIO et al.

167 A. 722

BICKELL et al.
v.
MORAIO et al.

Supreme Court of Errors of Connecticut.

July 18, 1938

Appeal from Superior Court, Fairfield County; Alfred C. Baldwin, Judge.

Action by Frank Bickell and others against James Moraio and others, some of whom filed cross-complaints, to quiet title and for a declaratory judgment relieving the properties of the respective plaintiffs of the burden of certain building restrictions thereon. Judgment in favor of the plaintiffs and of certain defendants filing cross-complaints, and appeal by remaining defendants.

Error and judgment for defendants directed.

167 A. 723

Argued before MALTBIE, C. J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

William C. Strong and William S. Hirschberg, both of Greenwich, for appellants.

Joseph E. Melvin, Frank Rich, and George Wise, all of Stamford, for appellees Moraio and Goldberg.

BANKS, Judge.

Plaintiffs and defendants are the respective owners of certain lots in a real estate development in the town of Greenwich known as Breezemont Park, which are subject to restrictive covenants prohibiting a business use. The plaintiffs brought this action alleging that the neighborhood had so changed that the restrictions were inequitable and unreasonable and ought to be removed. Certain of the defendants filed cross-complaints containing similar allegations. The trial court entered judgment removing the restrictive covenants in so far as they affect the lots of the plaintiffs and of the defendants filing cross-complaints, and quieting and settling their title as against any claim of the remaining defendants to a right to enforce the restrictions.

The following facts appear from the finding: The tract of land here in question is located on the Boston post road about two and one-half miles east of the center of Greenwich. In 1906 its owner caused a map of the property to be recorded upon which it was plotted into twenty-six lots known as Breezemont Park. Two of these lots are still the property of one of the original owners. The others have been sold from time to time; the deeds containing substantially uniform covenants, expressed to be for the benefit of every portion of the tract and the purchasers of lots in it, their heirs, successors, and assigns, covenanting that the property will not be used for any other purpose than for a strictly private residence, and that only one dwelling house shall be placed upon each lot which shall cost not less than $4,000 and be located not less than 50 feet from the street. No important changes affecting the desirability of the neighborhood for residential purposes occurred until 1012, when the post road was hard-surfaced wide enough for two lines of traffic with a trolley track on the northern side. In 1923 the post road was cemented and widened to provide four lanes of traffic, and the trolley tracks were removed between 1923 and the time of the trial. Since the widening of the post road automobile traffic has greatly increased. It continues at all hours of the day and night, at times becomes much congested, and produces a great deal of noise, particularly from trucks at night, which often disturbs the sleep of occupants of the houses fronting on the post road. In 1926 all properties within the development and on each side of it, back to a depth of 125 feet from the post road, were placed in an A business zone, and since the widening of the road there has been a very definite trend toward a business use of property having a frontage on the post road, and the finding recites a number of business places which during that time have been established along the post road, both east and west of Breezemont Park, such as restaurants, gasoline stations, garages, and dog kennels. The appellees own thirteen of the twenty-six lots composing Breezemont Park, and with one exception their properties front upon the post road, which passes through the restricted area; four of appellees' lots being north of the road and the remaining lots of the development south of it. There are nineteen dwelling houses within this area, but no business of any kind, and no building in violation of any of the restrictive covenants. The properties adjacent to the park on all sides are used for residential purposes except that there is a garage and a waffle wagon on the property next adjoining it on the post road on the west, and a greenhouse on the lot next adjoining it on the east. None of the appellants' lots are upon the post, road, but face other streets and avenues...