Howland v. Andrus

• Decision Date: 03 March 1913
• Citation: 86 A. 391,81 N.J.Eq. 175
• Court: New Jersey Supreme Court
• Parties: HENRY S. HOWLAND, complainant-respondent, v. PAULINE F. ANDRUS, defendant-appellant

86 A. 391

81 N.J.Eq. 175

HOWLAND

v. ANDRUS.

Court of Errors and Appeals of New Jersey.

March 3, 1913.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Henry S. Howland against Pauline F. Andrus.Decree for complainant(83 Atl. 982), and defendant appeals.Reversed.

Edwin B. Goodell, of Montclair, and John R. Hardin, of Newark, for appellant.

Sommer, Colby & Whiting, of Newark (Frank H. Sommer, of Newark, on the brief), for respondent.

TRENCHARD, J.The bill in this case was filed by Henry S. Howland against Pauline F. Andrus to enjoin an alleged violation of a building line restriction.The Court of Chancery awarded an injunction, and the defendant appeals.

It appears by the pleadings and evidence that Joseph Bardsley was the owner of a tract of land in the town of Montclair, lying between Park street on the east and Valley Road and North View avenue on the west, being about 900 feet in length by 500 feet in width.He laid out the land in building lots, with a street called Wildwood avenue through the middle of the tract from east to west.On June 1, 1903, Bardsley conveyed Wildwood avenue to the town by a deed dedicating it as a public street.This deed, duly recorded, referred to a map attached which showed the lots located on both sides of the avenue.The map also showed that these lots mostly fronted 100 feet on Wildwood avenue, and were about 220 feet in depth.Some of them, however, fronted on Park street, and some on Valley Road and North View avenue.South of Wildwood avenue two lots fronted on Park street and abutted on the adjoining Wildwood avenue lot.These two lots were each about 112 feet in width and about 208 feet in depth.There was a similar arrangement of the lots on Park street north of Wildwood avenue and a somewhat similar arrangement of lots on the other end of the tract.

Complainant and defendant own adjoining lots which they purchased from Rardsley.Complainant purchased March 15, 1906.His lot is on the southerly side of Wildwood avenue 208 feet 2 inches west of Park street.The defendant purchased October 31, 1910.She purchased two lots on Park street having their rear abutting on complainant's land.

The map attached to and made a part of the deed to the town of Montclair was recorded June 4, 1903, and was a matter of record at the time complainant bought his lot.The complainant testified that he had not seen the map but knew of its existence and knew that defendant's lots fronted on Park street.Complainant's deed contained the following restrictions: "This conveyance is made, delivered and accepted under and with the express stipulation and agreement, and the party of the second part, for himself, his heirs and assigns, does covenant and agree to and with the parties of the first part, their heirs, executors, administrators and assigns, that the property hereby conveyed shall be used for residential purposes only; that not more than one dwelling to cost not less than nine thousand dollars when erected, shall be erected on said lot, and to be so located that the front line thereof shall not be nearer than sixty feet to the street line measured at right angles thereto; that no outbuilding shall be erected thereon whose front line shall be nearer the street than is the rear line of the dwelling, and further, that this agreement shall run with the land and be in full force and effect for the term of twenty-five years from the date hereof."The deed also contained the following agreement on the part of the grantor: "And the parties of the first part hereby agree that they will not convey any of the adjoining lots except by deed containing the same restrictions as above recited."

The deed to the defendant contained the following restrictions: "No more than two one-family private dwellings costing no less than nine thousand dollars each when erected, together with suitable outbuildings, to be placed on said tract.The said houses to face on Park street on lots having a frontage of not less than one hundred feet, the front foundation wall of said dwelling to be at least fifty feet from the westerly side of Park street, the said outbuildings to be next to the southerly line of each lot and no nearer Park street than the rear line of the dwellings that may be placed on the several lots."

Before commencement of this action complainant had built upon his lot a residence conforming to his restrictions in respect to size and cost, but the actual front line of the house is only 56 feet from the street line measured at right angles thereto.

In April, 1911, the defendant commenced the erection of a residence on the northerly one of her two lots.It fronts on Park street as required by her deed.Its front line is 75 feet from Park street.The north side line of the house is 40 feet from Wildwood avenue at the front corner and 36 feet from Wildwood avenue at the rear corner.The house was designed to cost approximately $18,000.

On April 10, 1911, defendant's husband learned that complainant objected to the erection of the house.He called on the complainant in the afternoon, and they then showed each other their respective deeds.He testified that this was the first actual knowledge that he had of the agreement in the complainant's deed.The work of excavation was accordingly suspended pending an investigation.Later the work was resumed, and in June, 1911, the complainant gave formal notice of his claim, and on July 5, 1911, filed the bill which resulted in the injunction now under review.

We are of opinion that the injunction was improperly granted.

The defendant contends with much force that the complainant is not entitled to the aid of a court of equity (1) because he has himself violated the covenant which he seeks to enforce by the erection of his building within the restricted line, and (2) because of laches in his application for relief; but we are not inclined to rest our decision upon either of these grounds.We hold that if both these contentions are determined against the defendant, as they were in the court below, she was still...