Olson v. Jantausch

• Decision Date: 28 March 1957
• Docket Number: No. A--93,A--93
• Citation: 130 A.2d 650,44 N.J.Super. 380
• Parties: Lawrence OLSON, Helen W. Olson, J. Irving Potter and Phyllis L. Potter, Plaintiffs-Respondents, v. Arthur J. JANTAUSCH and Ann M. Jantausch, his wife, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 380

44 N.J.Super. 380

130 A.2d 650

Lawrence OLSON, Helen W. Olson, J. Irving Potter and Phyllis L. Potter, Plaintiffs-Respondents, v. Arthur J. JANTAUSCH and Ann M. Jantausch, his wife Defendants-Appellants.

No. A--93.

Superior Court of New Jersey, Appellate Division.

Argued March 4, 1957.

Decided March 28, 1957.

John W. Lebeda, Caldwell, for appellants.

George Buermann, Montclair, for respondents (Boyd, Dodd, Keer & Booth, Montclair, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs sought an injunction restraining defendants from using any part of their premises as a beauty parlor or for any other purpose than a single-family dwelling. The action was based upon a certain restrictive covenant appearing in the chains of title of the respective parties. Defendants challenged the validity and enforceability of the restriction, setting up the defenses of estoppel, laches, absence of neighborhood scheme, abandonment of restriction, immateriality of the alleged violation, and change of neighborhood. They also counterclaimed for compensatory and punitive damages for malicious prosecution. The Chancery Division determined that the single- family dwelling restriction was in full force and effect, and binding on defendants' property. It entered judgment in favor of plaintiffs granting the restraint sought, and against defendants on the counterclaim. This appeal followed.

The parties are adjoining neighbors on Sunset Avenue, Verona, N.J., plaintiffs Potter owning the premises to the east (No. 44), defendants Jantausch those in the center (No. 48), and plaintiffs Olson the property to the west (No. 50). In 1911 these lands were part of a tract of about 10 1/2 acres owned by Slayback-Ingalls Development Company. We are here concerned only with lots Nos. 1, 2, 3 and 4 of that company's development fronting on Sunset Avenue. On October 11, 1911 the company conveyed lots Nos. 2, 3 and 4, extending 240 feet immediately west of No. 1, to one Meagher. The deed provided:

'The said party of the Second part (Meagher), for himself, his heirs and assigns covenant(s) and agree(s) to and with the party of the first part (the company), its successors and assigns, that he or they will use said premises for no other purposes than the erection of residential buildings with the necessary and appropriate out buildings in connection therewith, each such house to be built on a lot of at least Eighty feet frontage and the front line thereof to be no nearer than thirty feet to Sunset Avenue and each house with its necessary and appropriate out buildings to cost not less than Forty-five Hundred Dollars ($4,500.00), and to be used for single family purposes only.'

Lots Nos. 2, 3 and 4 each had a frontage of 80 feet. Plaintiffs Olson now own Nos. 3 and 4, and the westerly 10 feet of No. 2--170 feet in all; defendants own the 70 remaining feet of No. 2. Slayback-Ingalls retained lot No. 1, fronting 100 feet on Sunset Avenue, until August 10, 1916, when the company's surviving directors, as trustees in dissolution, conveyed it to a Harriet B. Soule. Her deed makes no mention of restrictions like those in the Meagher deed, nor do any of the Mesne conveyances leading from her unto plaintiffs Potter, the present owners of lot No. 1.

At the beginning of 1928 lots Nos. 1 and 2, then totalling 180 feet frontage, were owned by Adele L. Van Cleve, and lots Nos. 3 and 4 totalling 160 feet, by Ida S. Harrison. On January 18, 1928 they and the holders of mortgages on their respective properties executed an agreement reciting the restrictions in the 1911 deed to Meagher and their desire to modify the 80-foot minimum frontage requirement, and providing that

'* * * the parties hereto, each in consideration of the covenant of the other, hereby covenant and agree that the said restrictions be and the same are modified accordingly, so that a house may be built on a lot with a minimum frontage of sixty feet, it being understood and agreed that all the other restrictions set forth in the said deed from Slayback Ingalls Development Company will remain in full force and effect.'

Defendants took title to 48 Sunset Avenue on May 6, 1954, their deed making no mention of restrictions. However, at title search made at the time fully revealed the restrictions, as did a policy of title insurance covering the property. Jantausch testified that his attorney did not tell him of the restrictions in the search, and that he did not examine the policy when he got it. The trial court said it did not believe him. Nor do we.

On October 11, 1954 defendants obtained a building permit to convert part of their two-car garage into a beauty parlor. Work began sometime during the week of October 20. Plaintiffs first learned the purpose of the alterations on October 27. They immediately got in touch with their present counsel who phoned defendants to tell them of plaintiffs' objection to what they were doing and then, on November 3, sent them a registered letter stating that the proposed use was in violation of their property restrictions and that his clients intended to seek injunctive relief. Defendants nevertheless continued with the work. The following week plaintiffs appealed to the Verona Zoning Board from the issuance of the permit. (See Jantausch v. Borough of Verona, 41 N.J.Super. 89, 124 A.2d 14 (Law Div.1956), for the sequel. The judgment of the Law Division is now on certified appeal to the Supreme Court.) The present complaint was filed November 29, 1955, as soon as necessary title searching and other preparatory details could be completed.

Defendants' first point on appeal is that the restrictions did not constitute a neighborhood scheme. Plaintiffs admit this is so. There must be a clear intent to establish a neighborhood scheme of restrictions. To be effective and enforceable, such a scheme must be (a) universal, the restrictions applying to all lots of like character brought within the scheme; (b) reciprocal, the restrictions constituting a benefit to all lots involved which are subject to the burden imposed; (c) reasonably uniform as to the restrictions imposed; they need not be identical but any variations must be such as not to create an inequitable burden or benefit. Auerbacher v. Smith, 22 N.J.Super. 568, 573, 92 A.2d 492 (App.Div.1952), certification denied 11 N.J. 498, 95 A.2d 36 (1953); Weinstein v. Swartz, 3 N.J. 80, 86, 68 A.2d 865 (1949); Scull v. Eilenberg, 94 N.J.Eq. 759, 771, 121 A. 788 (E. & A.1923). Neighborhood schemes are the product of covenant:

'* * * They arise when there is a general plan made public by the owner of the tract for the development of his property, 'to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan * * *.' DeGray v. Monmouth Beach Club House Co., 50 N.J.Eq. 329, 340, 24 A. 388 (Ch.1892), affirmed 67 N.J.Eq. 731, 63 A. 1118 (E. & A.1904).' Anders v. Greenlands Corp., 31 N.J.Super. 329, 342, 106 A.2d 361 (Ch.Div.1954).

Slayback-Ingalls did not in 1911 bind itself by a reciprocal obligation to impose any restrictions on the balance of the 10 1/2-acre tract retained by it. It subsequently conveyed lots out of the remainder of the tract without restriction.

Since there is no neighborhood scheme, plaintiffs Olson have no right to enforce the single-family dwelling restriction. Their property and that of defendants were the subject of one and the same grant, unto Meagher. The Potters stand on a different footing. Their predecessor in title, Harriet B. Soule, took from the Slayback-Ingalls trustees in dissolution by a deed subsequent to Meagher, and therefore--were it not for another matter shortly to be discussed--could enforce the restriction. Defendants' property has since 1911 been subject to an equitable servitude (often loosely referred to as an equitable easement) enforceable by each successive owner of the Potter premises, the dominant estate. Clarke v. Kurtz, 123 N.J.Eq. 174, 196 A. 727 (E. & A.1938); Bowen v. Smith, 76 N.J.Eq. 456, 74 A. 675 (Ch.1909); McNichol v. Townsend, 73 N.J.Eq. 276, 277--278, 67 A. 938 (Ch.1907, Leaming, V.C.). Vice-Chancellor Van Fleet reviewed the authorities and stated the doctrine in this fashion in Coudert v. Sayre, 46 N.J.Eq. 386, 395, 19 A. 190 (Ch.1890):

'* * * The doctrine now in force on this subject I understand to be this: that when it appears by the true construction of the terms of a grant that it was the well-understood purpose of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in the form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burthen thus created and imposed will pass with the lands to all subsequent grantees. And any grantee of the land to which such right is appurtenant, acquires, by his grant, a right to have the servitude or easement, or right of amenity, as it is sometimes called, protected in equity, notwithstanding that his right may not rest on a covenant which, as a matter of law, runs with the title to his land, and notwithstanding that it may also be true that he may not be able to maintain an action at law for the vindication of his right. * * *'

The burden was upon the Potters to establish that the restrictive covenant was made by Meagher, the prior grantee of the common grantor,...