Neptune Park Ass'n v. Steinberg

• Decision Date: 20 November 1951
• Citation: 138 Conn. 357,84 A.2d 687
• Court: Connecticut Supreme Court
• Parties: NEPTUNE PARK ASS'N et al. v. STEINBERG et al. Supreme Court of Errors of Connecticut

Page 687

84 A.2d 687

138 Conn. 357

NEPTUNE PARK ASS'N et al. v. STEINBERG et al.

Supreme Court of Errors of Connecticut.

Nov. 20, 1951.

Francis F. McGuire, New London, Morgan K. McGuire New London (Joseph E. Moukawsher, New London, on the brief), for appellants (plaintiffs).

Irving S. Ribicoff, Hartford, Frank A. Kelly, Jr., Hartford (Morris Lubchansky New London, on the brief), for appellees (defendants).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

INGLIS, Judge.

The question involved in this appeal is whether the use being made of the defendants' real estate is violative either of a restrictive covenant contained in their deed or of the zoning regulations applying to the area in which their property is located.

The following facts were properly found by the trial court: The defendants are owners as tenants in common of a building lot, with a fourteen-room house thereon, at 33 Mott Avenue in New London. The lot is within a real estate development laid out in 1907. The portion of the development in which the lot is situated is known as Neptune Park. The development was designed for residential purposes in accordance with a general plan, and all the building lots therein were made subject to certain restrictions. Among the restrictions to which the property now owned by the defendants was made and now is subject are these: 'There shall not be erected upon the premises herein conveyed any building or structure other than a dwelling house * * *; no public hotel, public bathing house or club house, shop, store, saloon or other place of business shall be erected or maintained on the lot herein conveyed.' The zoning regulations of New London place the lot in zone A-1. They state that one of the purposes of their adoption was that 'of preventing the over-crowding of land and avoiding undue concentration of population.' New London Bldg. Zone Ordinance, § 2. They provide: 'In an 'A' Residence Zone [including A-1 zones] no dwelling shall be erected, altered or used except as a one-family detached dwelling.' Id. § 3. 'A one-family detached dwelling' is a house accommodating but a single family * * *.' Id. § 1(v). 'A 'family' as used in this ordinance shall be deemed any number of individuals living and cooking together as a single housekeeping unit.' Id. § 1(u).

The named plaintiff is a specially chartered corporation with power to enforce the restrictive covenants and zoning regulations which obtain in the area where the defendants' property is located. The two other plaintiffs own real estate in the immediate neighborhood. The defendants are four sisters, each of whom is married. Among them they have eight children. They all live in Springfield, Massachusetts, and there each sister and her family occupy a dwelling separate from the others. They and their families, however, have been accustomed to spend their summer vacations together as one family.

The house now owned by the defendants was erected in 1914 and has ever since been occupied as a dwelling house. It was acquired by the defendants in September, 1948, and they started to occupy it in June, 1949. While they were in occupancy, the custom was for the defendants Jacobson and Steinberg and their husbands and the husbands of the other two defendants to spend weekends there, while the defendants Greenberg and Cheffeitz and all eight children were there continuously. Mrs. Cheffeitz, owing to poor health, was not active in the management of the household. That duty devolved upon Mrs. Greenberg, who planned and prepared the meals, did most of the housework and for the most part acted as head of the household. The defendants made no structural changes in the house. In particular, it was not altered to make separate quarters for any members of the group. At the suggestion of the postman, name plates were put up on the outside of the door designating the names of each of the defendants, but there is only one mail slot and one doorbell. Within the house there is only one kitchen, one sink, and one stove, and only one icebox is in use for the whole group. The defendants and members of their families live and cook together as a single housekeeping unit. They do not occupy separate quarters within the house, and the lodging, cooking and eating facilities are common to all. No business is carried on in the premises. It is not used as a boarding or lodging house. The trial court concluded that the use made of the premises by the defendants does not violate either the restrictive covenant or the zoning regulations and rendered judgment for the defendants.

The contention of the plaintiffs with reference to the restrictive covenant is that it is to be construed as permitting the erection of only one single-family dwelling house on the lot and it, therefore, precludes the use of the dwelling house which is erected thereon by four families. On the question whether the words 'a dwelling house' in such a convenant are to be interpreted as meaning a single-family house as distinguished from a duplex or apartment house, there is a sharp conflict in the authorities. Note, 14 A.L.R.2d 1376, 1381. It is not a question, however, the determination of which is essential to a decision of this case. The house now standing on the defendants' property is in structure and design a single-family dwelling.

'Restrictive covenants, being in derogation of the common-law right to use land for all lawful purposes, are to be narrowly construed and are not to be extended by implication. If their language is of doubtful meaning, it will be construed against rather than in favor of the covenant.' Rossini v. Freeman, 136 Conn. 321, 323, 71 A.2d 98, 99; Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308. The covenant providing that no structure except...