Rogers v. Zwolak

• Decision Date: 29 April 1920
• Citation: 12 Del.Ch. 200,110 A. 674
• Court: Court of Chancery of Delaware
• Parties: ALEXANDER ROGERS, v. WICTORIA ZWOLAK

110 A. 674

12 Del.Ch. 200

ALEXANDER ROGERS, v. WICTORIA ZWOLAK

Court of Chancery of Delaware, New Castle

April 29, 1920

INJUNCTION BILL. The bill is for an injunction to restrain the erection by the defendant of buildings within a certain distance of a street in violation of a building restriction. The case was heard on the bill as amended, answer, testimony heard orally before the Chancellor and exhibits. The facts are stated in the opinion.

Complainant entitled to a decree enjoining the defendant from erecting the building at a less distance than twenty feet from the northerly side of Market Street.

William W. Knowles and Wilbur L. Adams, for complainant.

Frank L. Speakman and Philip L. Garrett, for defendant.

OPINION

THE CHANCELLOR

This suit is to enjoin the erection of a building in violation of a building line restriction. Joseph Tatnall, owning a large tract of land in Wilmington on the northerly side of Market Street, and extending from a point a short distance west of Twenty-Fourth Street to a point east of Twenty-Eighth Street a distance of about fifteen hundred feet, sold and conveyed on August 6 and 7, 1878, to divers persons in separate lots all of the land between Twenty-Fourth and Twenty-Sixth Streets, and in each deed there was the following provision:

"Provided always, nevertheless, and it is hereby expressly declared, agreed and understood by and between the said parties hereto that no building shall be erected upon said land at a less distance than fifty feet from the northerly side of Market Street and that the whole front of said piece or parcel of land on Market Street to the depth of at least fifty feet shall be kept an open and ornamental space for the free passage of air and light forever."

This restriction was not contained in deeds made by Joseph Tatnall, or by his executors after his death, for his other lots in the tract, and affected only about one-half of the whole Market Street front of his tract.

The intention of Joseph Tatnall to establish for the benefit of each lot of land within the two blocks a building line restriction, as part of a general plan of building scheme, is sufficiently manifested even in the absence of a plot. Berry on Restrictions on the Use of Real Property 347; Hills v. Metzenroth, 173 Mass. 423, 53 N.E. 890; Leader v. La Flamme, 111 Me. 242, 88 A. 859. The restriction as to land within a particular block may be valid, though not imposed on the rest of the land of the creator of the restriction. Sanford v. Keer, 80 N.J.Eq. 240, 83 A. 225, 40 L. R. A. (N.S.) 1090.

Therefore, for the purpose of determining the rights and duties of the parties, the restriction may be considered with respect to the particular block of land in which the lands of both the complainant and defendant are located, viz. the block bounded by Twenty-fourth, and Twenty-Fifth Streets, fronting on Market. This conclusion is based on the purpose of the restriction, which, as specifically declared wherever used, is that the space between the city building line and the restricted building line "be kept an open ornamental space for the free passage of light and air forever." Presumably it is as to each lot for the benefit of those other lots in the immediate vicinity of the lot bound by the restriction. Such a restriction as to lots in a particular block, or square, is for the benefit of all other lots in that square and not necessarily for lots in other blocks or squares. This sounds like an arbitrary conclusion, but it is based on common sense and is supported by Morrow v. Hasselman, 69 N.J.Eq. 612, 61 A. 369. A different view might very reasonably prevail where the restriction is as to the kind of a building which it was permissible to erect, or to the uses to which it be put, such as restrictions against the erection of a slaughter house in a residential section. In such cases land in other and more remote blocks may be affected injuriously by an offensive business, so that it may be for their benefit, as well as for lots nearer the locus. Not so, however, where the avowed purpose is to maintain the free passage of light and air. This distinction is also noticed in Morrow v. Hasselman, cited above.

It has not been disputed that the restriction as established by Joseph Tatnall was when and as established a valid restriction enforceable in favor of all who subsequently took title to the land from him. It is not necessary to discuss whether it is in law an easement, or whether it runs with the land as a covenant real. In equity such a restriction is enforceable, whether or not it be unenforceable at law because of lack of privity of estate or contract. Indeed, it is enforceable in a Court of Chancery because unenforceable at law. As was said by Chief Justice Bigelow in Parker v. Nightingale, 6 Allen (Mass.) 341, 83 Am. Dec. 632, as to the rights and duties of those who claim under the grantor who established the restriction:

"A purchaser of land with notice of a right or interest in it existing only by agreement with his vendor, is bound to do that which his grantor had agreed to perform, because it would be unconscientious and inequitable for him to violate or disregard the valid agreements of the vendor in regard to he estate, of which he had notice when he became the purchaser. In such cases it is true the aggrieved party can often have no remedy at law. There may be neither privity of estate nor privity of contract between himself and those who attempt to appropriate property in contravention of the use or mode of enjoyment impressed upon it by the agreement of their grantor, and with notice of which they took the estate from him. But it is none the less contrary to equity that those to whom the estate comes, with notice of the rights of another respecting it, should willfully disregard them, and in the absence of any remedy at law the stronger is the necessity for affording in such cases equitable relief, if it can be given consistently with public policy, and without violating any absolute rule of law."

It is claimed by the defendant that, even if originally enforceable, the original restriction has been abandoned and relinquished, and no other valid restriction binding on the defendant has taken its place. It is true that the original fifty feet restriction has been disregarded in the location of every building in the block. One of the buildings, since torn down, was built on the city building line; two, including the one now owned by the complainants, are about thirty feet back of that line; and three are about twenty feet back. While trivial breaches of a restriction do not destroy the binding quality of a valid restriction. ( Morrow v. Hasselman, 69 N.J.Eq. 612, 61 A. 369), the variation in this case from the original restriction is material and substantial.

The further pertinent facts to be considered are these: In 1899 one Potter owned three unimproved lots at the northeast corner of Twenty-Fourth and Market Streets with an aggregate front of one hundred and twenty-five feet on Market Street and Wood and Pierce owned two lots fronting on Market Street adjoining Potter's land on the east. It was not shown who then owned the rest of the land in the block fronting on Market Street. Wood and Pierce, desiring to erect houses on their lots within fifty feet of the northerly side of Market Street, made an agreement in writing with Potter, and also with one Joseph L. Carpenter, Jr., wherein the making of the original restriction and the desire of Wood and Pierce to a modification thereof were recited. The parties for a nominal consideration, and representing that they were all owners of land on the northerly side of Market Street between Twenty-Fourth and Twenty-Fifth Streets, consented and agreed that Wood and Pierce could erect houses within fifty feet, but not less than twenty feet, of the northerly side of Market Street. This agreement and all other conveyances herein referred to are recorded. These houses were erected about thirty feet from the northerly side of Market Street, and the one immediately adjoining the Potter land was acquired by the complainant in 1912, and is still owned by him. His deed contains a twenty feet restriction. Subsequently, in 1909, Potter erected on his fifty feet lot at the northeast corner of Twenty-Fourth and Market Streets a brick and glass structure used as a hot house for growing plants, and built on brick foundations. It was spoken of as a temporary structure, but was as reasonably permanent as such buildings are. This structure was erected directly on the city building line. Subsequently Potter conveyed the one hundred and twenty-five feet of...