Newbery v. Barkalow

• Decision Date: 21 January 1909
• Citation: 75 N.J.E. 128,71 A. 752
• Parties: NEWBERY v. BARKALOW et al.
• Court: New Jersey Court of Chancery

71 A. 752

75 N.J.E. 128

NEWBERY

v. BARKALOW et al.

Court of Chancery of New Jersey.

Jan. 21, 1909.

Suit by Emma V. Newbery against Mary M. Barkalow and another. Heard on bill to restrain defendants from building within a restricted area. Decree for complainant.

Aaron E. Johnston and Charles H. Ivins, for complainant.

David Harvey and Alan H. Strong, for defendants.

HOWELL, V. C. The Ocean Beach Association was incorporated on March 13, 1873 (P. L. p. 1089). It was authorized to purchase and sell lands, and was especially empowered to require any grantee from it to make and maintain such style and character of improvements on the lands conveyed, or on the streets fronting thereon, as might seem most expedient for securing a uniform system of development and improvement The corporation purchased a tract of land extending from the Atlantic Ocean to Shark river, in Monmouth county, with the intent of promoting the seaside resort which is now known by the name of "Belmar." It at once laid out streets and avenues through the property east of F street, and filed maps thereof, the streets running north and south being designated by the letters of the alphabet, and the avenues running east and west at right angles to the streets being designated by numbers. The streets were laid out GO feet wide, and the avenues 80 feet wide. Before any lots were sold by the corporation its board of directors, on June 9, 1873, passed the following resolution: "Resolved, that it is highly important to maintain uniformity in the line of buildings on the main avenues of the association, and for securing said object that no building be erected on said avenues nearer to the line of same than twenty feet." This resolution was entered upon the minutes of the corporation, and no public filing of other general notice was given of it. On March 27, 1877, the corporation made a deed to Ellen T. H. Harvey for a plot of land containing about 3 1/4 acres, including the lots now owned by the complainant and the defendant. This plot lay west of F street, and between that street and Shark river, and at the time of the conveyance had not been plotted into lots, nor had there been filed any map showing the lines of streets and avenues through it. It will be observed, however, that the deed refers to several streets and avenues by name. These were afterwards plotted and made coterminous with the streets and avenues which had been previously laid out east of F street. This deed of conveyance is in the usual form of a warranty deed, but it was made "subject, nevertheless, to the covenants, conditions and restrictions contained in the aforesaid act entitled 'An act to incorporate the Ocean Beach Association.'" The deed also contained a covenant made by the grantee in the following words: "And the said party of the second part, for herself, her heirs and assigns, does covenant and agree to and with the said the Ocean Beach Association, their successors and assigns, that the said party of the second part, her heirs and assigns, shall not sell or suffer to be sold on the said premises hereby conveyed any spirituous or intoxicating liquors, nor violate any of the provisions contained in said act of incorporation, by-laws, rules or regulations made by the said association at any time."

The title to these two lots passed by several mesne conveyances to a corporation known as the Land & Loan Company, by deed dated January 23, 1907. All the intervening deeds, with the exception of one made by an auditor in attachment, make reference to the covenants, conditions, and restrictions contained in the deed from the Ocean Beach Association to Mrs. Harvey. On February 2, 1907, the Land & Loan Company by its deed to Cyrus B. Honce made the first severance of the title to the lots in question. By this deed it conveyed to Honce lot No. 1,963 on the corporation's map, which was on September 18, 1907, conveyed by him to the complainant, Mrs. Newbery. The deed to Mr. Honce is made subject to certain conditions, covenants, and restrictions theretofore imposed upon said land and premises by the Ocean Beach Association, and the deed from him to Mrs. Newbery is made subject to all the covenants, conditions, and restrictions contained in the former deeds for the same premises. On June 1, 1907, the Land & Loan Company conveyed to the defendant lot 1,964 which adjoins the complainant's lot on the west. This deed contains the following, at the end of the description: "Under and subject, nevertheless, to certain conditions, covenants and restrictions heretofore imposed upon said land and premises by said Ocean Beach Association." The complainant and defendant, therefore, own adjoining lots on the association tract, both fronting on Tenth avenue and lying west of F street; the complainant's lot being the more easterly and the defendant's lot the more westerly of the two. On the complainant's lot is erected a dwelling house, in which reside the complainant and her family. On the defendant's lot is a livery stable, the main building of which extends within the limited area about 3 inches. The defendant has laid a foundation for an office, which extends about 11 feet within the restricted area, and is about to construct an office building thereon. The distance between the complainant's house and the defendant's livery stable is about 6 to 8 feet. The complainant's bill is based upon the allegation that there was a general plan for the improvement of Tenth avenue by maintaining the front line of the houses 20 feet away from the street line, of which general plan the defendant had notice.

There was evidence tending to show that all the deeds of conveyance made by the Ocean Beach Association for lands covered by their maps contained the same covenant that appears in the deed from that corporation to Mrs. Harvey. And it likewise appears that that corporation did formulate and lay out a general plan for the uniform improvement of all the property which it owned at that point. Both complainant and defendant must be charged with notice of these facts, for the reason that they are specifically referred to in both their deeds. Such was the determination of this court in the case of Hayes v. Waverly and Passaic...