Bickell v. Moraio

• Decision Date: 18 July 1933
• Citation: 117 Conn. 176,167 A. 722
• Court: Connecticut Supreme Court
• Parties: BICKELL et al. v. MORAIO et al.

167 A. 722

117 Conn. 176

BICKELL et al. v. MORAIO et al.

Supreme Court of Errors of Connecticut.

July 18, 1933

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.

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

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

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

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 1912, 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 within the development. The post road lots of the appellees, if made available for business uses, would be worth greatly in excess of their present values as residential property. A change from a residential to a business use of such lots would have no appreciable effect upon the value of any of the appellants' lots with the exception of one, as to which the effect would be slight. Five of the lots in this development were purchased in 1927 or subsequent thereto. With few exceptions, the several property owners within the development purchased with knowledge of the restrictions, and the sales argument based thereon was to some extent an inducing cause of the purchase.

The finding states in considerable detail the subordinate facts upon which the trial court based its conclusion that, because of the changed conditions therein recited, the restrictive covenants now impose a substantial burden upon the properties of the appellees without rendering the protection to the properties of the appellants that was given when the covenants were imposed, resulting in its judgment that they should be removed. The numerous corrections of the finding which are requested are for the most part of evidential matters which, if granted, would not affect the result. The foregoing statements of facts, necessarily condensed from the extensive finding, fairly presents the picture portrayed by the finding, and contains the ultimate facts found by the court which are essential to a consideration of the applicable principles of law involved.

The finding discloses a typical case of the subdivision of a tract of land by the owner and a sale of the several parcels to separate grantees, imposing restrictions upon its use pursuant to a general plan of development or improvement. Such restrictions constitute negative easements which may be enforced by any grantee against any other grantee; each parcel becoming both a dominant and servient tenement. Armstrong v. Leverone, 105 Conn. 464, 471, 138 A. 71; Gage v. Schavoir, 100 Conn. 652, 662, 124 A. 535. That such reciprocal rights and duties existed as between the respective purchasers of lots in this development from the time that they became the owners thereof, by virtue of which any one of them could maintain an action to restrain a breach by any other of the restrictive covenants is not disputed, nor is it claimed that the right to enforce the restrictions has been lost by any conduct on the part of any of the owners, by acquiescence in violations of the restrictive covenants or otherwise, which would constitute laches or an abandonment of their rights. The sole ground upon which the appellees base their claim to be relieved from the obligation of the restrictive covenants in their deeds is that the character of the neighborhood in which this development is situated has so completely changed since the restrictions were imposed that they are now burdensome upon the lots of the appellees and furnish no protection to those of the appellants, and that their further enforcement would therefore be inequitable.

The encroachment of business upon areas restricted to residential purposes has resulted in extensive litigation in which the enforcement of such restrictions has been resisted upon the ground that changed conditions have made such enforcement inequitable. Many of the cases will be found collected in comprehensive annotations in 28 L.R.A. (N. S.) 715, and 54 A.L.R. 812.

The creation, in a building development scheme, of an area restricted to residential purposes, contemplates the continued existence of such an area from which business is excluded. That it also contemplates that business may extend to the confines of the area is apparent, since it is to prevent the encroachment of such business into the protected area that the restrictions are created. Purchasers of lots in such an area buy in reliance upon the fact that all other lots in the area are subject to the same restrictions as those contained in their own deeds, and that the entire development will retain its character as a purely residential district. So long as it remains possible to carry out the original purpose of the development, each purchaser of a lot has a right to the protection of his easement in all the other lots in the restricted area, in the absence of conduct on his part constituting laches, waiver, or abandonment. It is only when there has been a radical change in the conditions existing when the restrictive covenants were created which completely defeats the objects and purposes of the covenants so that they are no...