Rossini v. Freeman

• Decision Date: 15 December 1949
• Parties: ROSSINI et al. v. FREEMAN et al. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 98

71 A.2d 98

136 Conn. 321

ROSSINI et al. v. FREEMAN et al.

Supreme Court of Errors of Connecticut.

Dec. 15, 1949.

Benjamin M. Chapnick, New Haven, Samuel Schlein, New Haven, for appellants.

Irving Sweedler, New Haven for appellees.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

ELLS, Judge.

This is an action for an injunction restraining the defendants from altering or converting a house from a two-family dwelling to one designed to accommodate three families in violation, it is claimed, of a restrictive covenant. Judgment was for the plaintiffs and the defendants have appealed.

Assignments of error attacked the finding of facts made by the trial court, but they are not pursued in the defendants' brief and we do not consider them. The claim made to us is that the conclusions reached by the trial court are not supported by the subordinate facts.

Two of the plaintiffs, the Rossinis, own and occupy premises known as 645 Whitney Avenue in New Haven. The other two plaintiffs, the Kushlans, have owned and occupied since 1939 premises known as 653-655 Whitney Avenue. The defendants have owned and occupied since 1945 premises known as 659 Whitney Avenue. The present action was precipitated when they started to enlarge their house into a three-family one.

Benjamin Linsky acquired in 1921 a tract of land with a frontage of about 531 feet on the east side of Whitney Avenue. He subdivided the tract and sold separate lots to different grantees. The premises of the plaintiffs and the defendants are a part of the subdivision and were conveyed by Linsky to separate grantees by duly recorded deeds, subject to the following restrictions: '* * * that only one dwelling house of 16 rooms, 4 bathrooms, to accommodate not more than two families, the plans, specifications and design of which shall have been first approved by me, shall be erected on said land. * * *' The same provision was included in subsequent deeds to the successors in title, including the present parties of the original grantees. It is obvious, although not directly found, that Linsky meant to sell the whole tract and not retain any part for himself. Upon these facts the conclusions reached by the trial court which are essential to the support of the judgment rendered are as follows: 'The restrictions were for the common and mutual benefit of the buyers and their successors in title of the lots carved out of the original tract. The restrictions created negative or equitable easements in all of the lots which run with the land.'

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. Easterbrook v. Hebrew Ladie's Orphan Society, 85 Conn. 289, 296, 82 A. 561, 41 L.R.A.,N.S., 615; Bassett v. Pepe, 94 Conn. 631,...