Katsoff v. Lucertini

• Decision Date: 09 March 1954
• Court: Connecticut Supreme Court
• Parties: KATSOFF et al. v. LUCERTINI et al. Supreme Court of Errors of Connecticut

Page 812

103 A.2d 812

141 Conn. 74

KATSOFF et al. v. LUCERTINI et al.

Supreme Court of Errors of Connecticut.

March 9, 1954.

Alvin M. Murray, New Haven, with whom, on the brief, were Alexander Winnick, Milton Rice and Gilbert H. Winnick, New Haven, for appellants (plaintiffs).

Herbert L. Emanuelson, New Haven, for appellees (defendants).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE and DALY ^*, JJ.

DALY, Associate Justice.

The plaintiffs sought an injunction to require the defendants to remove a sign on the roof of a building on the defendants' land adjoining the plaintiffs' premises on the south and to restrain them from erecting a sign or a building on their property. This appeal is taken from a judgment for the defendants denying the plaintiffs' prayers for relief. The principal question is whether the court erred in concluding that the erection and use of the billboard does not constitute a violation of a restrictive covenant and that the billboard is not a 'building' within the intendent of the covenant.

The finding, which is not subject to material correction, recites the following facts: The plaintiffs are the owners of a parcel of land fronting on West Water Street in the city of New Haven. The land was purchased by them under an agreement entered into in February, 1948. The structure on the property had been a six-family dwelling from at least 1904 until 1930, when, by reason of its dilapidated condition, the interior was removed, the original walls were permitted to remain standing, and hotel accommodations were added. Since 1930, a hotel or rooming-house business has been conducted by successive owners or lessees in a three-story building housing first-floor stores and twenty-eight hotel rooms, there being fourteen on each of the two upper floors. The southerly wall of the building faces toward the New Haven railroad station and the tracks adjacent thereto, and it contains a number of windows opening from rooms in the hotel. At the time the contract of sale was executed, there was no structure upon the one-story building which adjoins the hotel property on the south. On March 8, 1948, a deed of the hotel property was executed by Merwin Krevit to the plaintiffs. Between the date when the plaintiffs' purchase agreement was executed and March 8, 1948, the date of transfer, a sign was erected upon the one-story building. The most desirable rooms in the hotel are those facing the south.

The controversial restrictive covenant, originally incorporated in a warranty deed dated June 20, 1904, from Charles T. Coyle, the plaintiffs' predecessor in title, to Joseph Blake, the defendants' predecessor, provides: '[N]o building shall be erected on that portion of the land hereby conveyed which adjoins and is directly South of the brick building above described, higher than the one story building now on the land hereby conveyed so long as the brick building which now forms the Northerly boundary line adjoining shall remain on said land.' The incumbrance clause in the same deed contains the following exception: '* * * except said reservation not to build on said portion of said land south of said brick building so long as the same shall remain on said land on the North.'

The defendants own the one-story building immediately south of the hotel; it contains two stores which are under lease. Atop this building, the defendants have permitted the United Advertising Corporation to erect a two-sign billboard, each panel being approximately fifteen feet high and twenty-five feet wide. The billboard was completed in all respects on February 24, 1948. Before the institution of this action, the defendants were requested by letter to remove the obstruction, and a like...