Gage v. Schavoir

• Decision Date: 08 May 1924
• Citation: 100 Conn. 652,124 A. 535
• Court: Connecticut Supreme Court
• Parties: GAGE ET AL. v. SCHAVOIR.

124 A. 535

100 Conn. 652

GAGE ET AL. v. SCHAVOIR.

Supreme Court of Errors of Connecticut.

May 8, 1924

Appeal from Superior Court, Fairfield County; William M. Maltbie Judge.

Action by Harriett E. Gage and others to enjoin Arnold L. Schavoir from operating and maintaining a factory upon certain land owned by him, in violation of certain restrictive covenants contained in his deeds of the land. Tried by the court. Judgment for defendant from which plaintiffs appeal. No error.

Thomas J. Ryle and Stanley P. Mead, both of Stamford, for appellants.

Raymond E. Hackett, of Stamford, for appellee.

KEELER, J.

On June 11, 1912, the executor of the will of Isaac Wardwell deceased, conveyed to Frank B. Gurley a tract of land of considerable size, theretofore divided and mapped out into lots for purposes of sale and development, named Bradford Park. It is intersected by a number of then existing public highways, and, in addition to these highways, a number of new streets were cut through various parts of the property, among them Frederick street, hereafter mentioned. This deed from the executor to Gurley contained a restrictive covenant, as printed in the margin.

" This deed is given and accepted upon the express covenant and agreement on the part of the grantee, his heirs and assigns that no building erected upon the lots numbered fifty-one (51), fifty-two (52), fifty-three (53), fifty-four (54) and fifty-five (55) on said map shall be of a less first cost than four thousand (4,000) dollars; that none of the lots fronting upon Shippan avenue or Elm street, or upon Frederick street north of Elm street, shall have any dwelling house erected thereon of a less first cost than thirty-five hundred (3,500) dollars; that no building north of Elm street shall be erected upon any of said land, this day conveyed, other than a single-front dwelling house without any outside stairway to the second or higher story thereof, and no building north of Elm street, so erected, shall be used for any other than residential purposes, excepting buildings which may be erected upon lots numbered eighteen (18) to thirty (30), inclusive, on said map, which may have buildings erected upon the same to be used for business purposes; that no lot delineated upon said map with a frontage of fifty (50) feet on same shall be subdivided for purposes of building unless said subdivision shall result in making lots of more than fifty (50) feet front; that the front wall of houses erected on the lots numbered one (1), two (2), three (3), and seven (7) on said map shall not be nearer to the street line than a distance of thirty (30) feet; that lots numbered fifty-one (51) to fifty-five (55), inclusive, on said map shall not have the front walls of houses erected thereon nearer to the street line than twenty-five (25) feet, and that on all lots fronting on the north side of Elm street, and all lots on said map lying north of said Elm street (except those hereinbefore allowed to be used for business purposes), no houses shall be erected with the front wall nearer than twenty (20) feet from the street line; that for a period of fifteen (15) years next succeeding the date of this deed no building erected upon any of said land delineated on said map shall be used for the sale or storage of intoxicating liquors of any sort or kind."

Fifty of the lots contained in the development tract lie north of Elm street, of which thirteen were permitted to be used for business purposes, and the remainder were restricted, as to erections thereon, to single front dwelling houses, exclusively residential, without outside stairways to a second or higher story, the same to be set not nearer than twenty feet from the street line. Upon the rest of the whole tract the lots are not restricted to residential use.

In June, 1912, defendant purchased lots numbered 1, 2, 3, 4, 5, and 6 upon the part of the tract lying north of Elm stret. His purchase deed expressly referred to the restrictions above named without giving them in full. He never saw the deed and had only a general knowledge of the purport of the restrictions. At about the time of his purchase he spoke to his grantor, Gurley, regarding the restrictions, whom he told of his intention to construct a garage and automobile repair shop, and was told he would not be bothered about them. This was the only assurance that he received, regarding the enforcement of restrictions. He has never received any release or waiver of the same from any of the plaintiffs, or from the estate of Isaac Wardwell. Defendant was without experience of the nature and obligation of such restrictions, and attached no particular significance to them, as contained in his deeds. He relied upon Gurley's assurance, and had no conscious intention to violate the rights of any one. The plaintiffs, who at the trial were still prosecuting this action, took title to their several lots in 1912, 1913, 1915, 1919, and 1920. Each of their purchase deeds contained the restrictions above referred to.

In October, 1912, the defendant erected, on one of the lots bought from Gurley, a one-story brick garage and auto shop, measuring 28 by 46 feet. This building was used as a garage, repair shop, and service station till July, 1914. In March, 1914, he added a second story to this garage. From 1914 to 1916 defendant used the ground floor of this building as a private garage, and for a few months used the second story in attempting the manufacture of valves. In connection with other machinery, he installed certain machines including a 10 h. p. upright boiler, with a smokestack 25 feet high. During that time he employed four workmen and two draughtsmen. This work continued during 1915, and was then abandoned, and some time prior to 1918 the machinery and equipment were sold. In the latter part of 1916, and early in 1917, the defendant began making rubber toys in the building, and from that time until 1922, defendant, at brief intervals, added buildings and machinery, and during the latter part of this period much light equipment was substituted for some of the heavier type. From 20 to 25 per cent. of defendant's investment was made since the institution of the action against him. The present value of his total machinery and equipment is about $57,000. The present value of the lots owned by the defendant is about $6,000, and of the buildings about $17,500.

The volume of work done on the premises has steadily increased. In the years 1912 to 1916, inclusive, before the defendant began the manufacture of toys, and including in the first year some automobile sales, its value was estimated by the defendant to be about $20,000 to $29,000 each year. In 1917 the volume of business transacted amounted to $19,000; in 1918 it amounted to $27,000; in 1919 it amounted to $33,000; in 1920 the amount of business done on the premises in the manufacture of toys, and also including a government contract in connection with gas masks, amounted to $74,726; in 1921, including the same manufactures, it amounted to $138,066.37; in 1922 the business done was in the manufacture of toys alone, and it amounted to $91,457.97. At the time of the trial the defendant had on hand orders for deliveries up to November, 1923, in the amount of $125,000. Prior to 1919, the defendant employed in his business between 3 and 5 hands, as an average. In 1919 he employed 13; in 1920, 27; in 1921, 22; in 1922, 34, and at the time of the trial, in 1923, 43 men were employed.

From the time when the defendant erected the brick garage, in 1912, until the time when the action was started he has almost continuously used his property for business purposes, in violation of the restrictions upon it, and from 1917 he has, except for two months when he closed the factory to take his men elsewhere to do war work, continuously used it for manufacturing purposes; and since that year he has been engaged in manufacturing rubber toys. The property became, obviously, permanently dedicated to manufacturing purposes in 1914 and 1915. The use, by the defendant, of the lots in question for business purposes, contrary to the restrictions of the deed, has been open, notorious, and obvious ever since the latter part of 1912, and its use by the defendant for factory purposes, namely, the manufacture of rubber toys and other articles, has been open, notorious, and obvious since 1917. During the time that the defendant was engaged in making the additions to the buildings, and the additions and improvements to the property, and during the time that he was using the property for business purposes, no protests or objections were ever made by any one to the defendant concerning the use of the premises by him in the manner in which he was using them; and it was not until two weeks before the action was started, which was July 8, 1921, and about two months after all the buildings had been completed, that the defendant first learned there was any objection by any one to his use of the property in the manner in which it was then, and formerly, used. No secrecy was used by the defendant in this use of his property, and a casual observation of the premises or of the work which was being done there would have disclosed the nature of the business which was being transacted.

The conduct of the plaintiffs and the other owners of lots on this tract was such as would naturally lull the defendant into a belief that they did not intend to enforce the restrictions against him, and to encourage the defendant to build up his plant and business in that location. The greater portion of the machinery and equipment in the defendant's factory could be transported to another location without great trouble or expense; it would not be impossible to move the heavier machinery, the mixing...