Roberts v. Scull

• Decision Date: 27 May 1869
• Citation: 43 A. 583,58 N.J.E. 396
• Parties: ROBERTS v. SCULL.
• Court: New Jersey Court of Chancery

43 A. 583

58 N.J.E. 396

ROBERTS

v. SCULL.

Court of Chancery of New Jersey.

May 27, 1869.

(Syllabus by the Court.)

Bill by Ellen Chose Roberts against Lewis B. Scull. Rule to show cause why preliminary injunction should not be granted. Denied.

Allen B. Endicott, for complainant.

Thompson & Cole, for defendant.

GREY, V. C. The complainant in this suit is the owner of a house and lot situate on the east side of United States avenue, in Atlantic City. She alleges that 40 years ago one Brown, being the holder in fee of a tract of land of which her lot formed a part, opened a street, now called "United States Avenue," and built two houses on each side of it, facing on said avenue, and set back from the street or property line a distance of 32 feet, and afterwards sold lots on either side of said avenue, and that in each of the deeds conveying those lots there was inserted a condition that the house or houses to be built thereon should be in keeping with those already built by him, and set back a distance of 32 feet from the property line, and that no stables or outbuildings should be erected on any of said lots; and that, as a result of said restrictions, United States avenue has been built up with cottages in good style, and said lots have been kept free from all buildings except such as face on United States avenue. Brown, on the 19th of October, 1888, conveyed to one James F. Graham the lot at the southeast corner of Pacific and United States avenues, running back from United States avenue to Pacific avenue, with a uniform width of 80 feet. This lot is marked "Harris" on the annexed map. The deed to Graham contained the following restriction: "Under and subject nevertheless to the following condition and restrictions: That the house erected upon said lot shall be of good style, and in keeping with other properties on the said United States avenue, to be built in a line with the other houses, and at a distance of not less than thirty-two feet from the line of United States avenue, and that the depth or width of the porch shall not be more than eight feet, that there shall be no stable or outside privy erected upon the same, and that no building erected upon the said lot shall be used as a hotel, tavern, boarding house, or other like purpose." The last-named deed was duly recorded. By intermediate conveyance this lot came to be held by Eva L. Harris, who on the 20 th of January, 1899, conveyed to the defendant, Lewis B. Scull, a portion of that lot, not facing on United States avenue, but located at the other end of the lot, fronting 40 feet on Pacific avenue and 80 feet on Delaware avenue. This lot is marked "Scull" on the annexed map. The complainant alleges that Scull's lot is subject to the restriction above quoted, as contained in the original deed from Brown to Graham, and that in the deed from Mrs. Harris to the defendant, Scull, there is also contained this additional restriction: "Subject, nevertheless, to a restriction (to which the party of the second part agrees) that the foundation wall of the cottage to be built upon the above-described lot shall not be more than four feet east of the most westerly line of the said lot" The complainant Ellen C. Roberts, is the owner of the lot of land fronting on United States avenue, which lies immediately adjoining to the abovementioned Harris lot, on the south, along its whole length, and which is marked "Roberts" on the annexed map. She alleges that Brown in 1882 conveyed the lot she now owns to one Ladner; that in the deed Brown inserted the same covenants and restrictions and conditions as those particularly set forth above, as contained in the deed from Brown to Graham, and that she took title to her lot by intermediate conveyance from Ladner, with full knowledge of the restrictions imposed upon it in the deed to Ladner, and was induced to purchase it because of the fact that the lands immediately north of her, and, indeed, all lots on both sides of United States avenue, were subject to said restrictions; and that the restrictions on her lot and on the lot immediately adjoining her on the north formed part of the purchase price of said lota, respectively. The situation of the lots in question is indicated by the following diagram.

The complainant further alleges that the defendant, Scull, is about to erect a cottage or dwelling house on the lot of land conveyed to him by Mrs. Harris, and she alleges further that such a structure will be a great detriment to her, because it will interfere with the view of Delaware avenue, and that it is a violation of the covenant and restriction above referred to, because it will not be in a line with the other houses on United States avenue, or in a line with the house already erected on the Harris lot, and that it is also a violation of the covenant because it is not in keeping with the general plan and scheme with which United States avenue was opened, and lots sold and houses built thereon; that she has given notice to Scull that the erection of his house as proposed is a violation of the restriction, "unless it faces United States avenue, and sets back thirty-two feet from the property line," and threatened him with an application for an injunction to restrain him from building as proposed. The complainant prays that the defendant may be restrained from erecting any building on the lot of ground conveyed to him by Mrs. Harris. An order to show cause has been allowed, and, upon the coming in of the rule, argument was heard upon application for a preliminary injunction to restrain the defendant from erecting any building on his lot. The defendant, Scull, for showing of cause, files an affidavit admitting his intention to build a dwelling house on his lot, to front on Pacific avenue, which dwelling house he declares will be attractive in appearance, and as expensive, approximately, as the other buildings on United States avenue. He denies that the lots on United States avenue have been kept free from structures, except such as faced United States avenue, and says that on the easterly side, at the ocean end of United States avenue, there has for five years past been a building, not a cottage or dwelling house, used for amusement purposes, and on the westerly side, at the ocean end of United States avenue, there are bath houses, which have been so used for five years; that there are also two buildings on said avenue which are being used for boarding-house purposes, one of which has been used for the past three years; and that none of said buildings are of good style, or in keeping or built in line with the other properties on...