Scull v. Eilenberg

• Decision Date: 18 June 1923
• Docket Number: No. 35.,35.
• Citation: 121 A. 788
• Parties: SCULL et al. v. EILENBERG.
• Court: New Jersey Supreme Court

121 A. 788

SCULL et al.

v. EILENBERG.

No. 35.

Court of Errors and Appeals of New Jersey.

June 18, 1923.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by Montice L. Scull and others against John F. Eilenberg. Decree for complainants (119 Atl. 275), and defendant appeals. Reversed.

Bourgeois & Coulomb, of Atlantic City, for appellant.

Cole & Cole, of Atlantic City, and Norman Grey, of Camden, for respondents.

KATZENBACH, J. This is an appeal from a decree of the Court of Chancery. The complainant below, Mentiee L. Scull, is the owner of a lot of land in the city of Atlantic City, fronting 50 feet on the easterly side of Montpelier avenue and distant 275 feet from the southerly line of Atlantic avenue. The defendant below and appellant, John F. Ellenberg, is the owner of a lot of land located at the southwesterly corner of Atlantic and Montpelier avenues which has a frontage of 42 feet on Atlantic avenue and extends along the westerly side of Montpelier avenue 113 feet.

Prior to the year 1887, a corporation, known as the Chelsea Beach Company, owned a large tract of land of which the complainant's and defendant's lots were a part. This company caused the entire tract to be plotted and divided into blocks and lots (both numbered) and a map thereof to be made, which was filed in the Atlantic county clerk's office. The lot of the complainant Scull was conveyed by the company by deed dated May 28, 1887, and the lot of the defendant, Eilenberg, was conveyed by the company by deed dated March 16, 1887. The deeds by which the title to these two lots passed from the Chelsea Beach Company contained certain restrictions and covenants. Among these are the following, which are the ones pertinent to this case:

"Under and subject nevertheless to the following covenants and conditions which are hereby made a part of the consideration of this conveyance: That no building shall at any time be erected within 20 feet of the front property lino of any street or avenue, except on Atlantic avenue, nor within 5 feet of the side lines of said lot, except where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire without regard to the intervening line or lines, provided the same is not built within five feet of the outside lines of the 'said lots, nor within 20 feet of the front property line thereof, and also, that no building of less value than five hundred dollars shall be erected thereon. * * *

"And also under and subject to the covenants and conditions, that no stores, except drug and confectionery stores, shall be allowed on any part of the Chelsea Beach Company's property except on Atlantic Avenue. * * * "

"And it is expressly understood and agreed that the said several covenants on the part of the said party of the second part, above specified, shall attach to and run with the land, and it shall be lawful not only for the said Chelsea Beach Company, and their successors and assigns, but also for the owner or owners of any lot or lots adjoining in the neighborhood of the premises hereby granted, deriving title from or through the said Chelsea Beach Company, to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same, it being understood, however, that this covenant is not to be enforced personally for damages against the said party of the second part, his heirs or assigns, unless he or they be the owner or owners of the said premises or of some part thereof at the time of a violation of the said covenant or of a threatened or attempted violation thereof; but the said covenant may be proceeded in for an injunction of and for a specific execution thereof against the said party of the second part, his heirs or assigns, and for damages against the party or parties violating the said covenant they or their heirs, executors or assigns.

"The object of these covenants being to secure the health, beauty, ornamentation, and value of the premises."

In the deeds to the complainant and defendant these restrictions and covenants are referred to.

It is apparent from the wording of the restrictions and covenants above set forth that the purpose of the Chelsea Beach Company was to create a general neighborhood scheme or plan which would, if carried out, result in the increased enjoyment of the lots by the users, and a greater value to the owners. The restrictions and covenants state the purpose in the words "the object of these covenants being to secure the health, beauty, ornamentation, and value of the premises."

It is also apparent from the restrictions that Atlantic avenue was placed in a different class than the other streets and avenues in the tract. The restrictions provided that no stores, except drug and confectionery stores, were to be permitted on any of the streets or avenues except Atlantic avenue. This permitted stores for business of all kinds to be erected on Atlantic avenue. The restrictions also provided that "no building shall at any time be erected within 20 feet of the property line of any street or avenue, except on Atlantic avenue." This restriction also recognized that Atlantic avenue was destined to be in this section a business street as it then was to the east of this locality.

A neighborhood scheme of restrictions to be effective and enforceable must have certain characteristics. It must be universal; that is, the restrictions must apply to all lots of like character brought within the scheme. Unless it be universal it cannot be reciprocal. If it be not reciprocal, then it must as a neighborhood scheme fall, for the theory which sustains a scheme or plan of this character is that the restrictions are a benefit to all. The consideration to each lot owner for the imposition of the restriction upon his lot is that the same restrictions are imposed upon the lots of others similarly situated. If the restrictions upon all lots similarly located are not alike, or some lots are not subject to the restrictions while others are, then a burden would be carried by some owners without a corresponding benefit., "The burden follows the benefit," as was said by Judge White in the case of Sanford v. Keer, 80 N. J. Eq. 240, 83 Atl. 225, 40 L. R. A. (N. S.) 1090. When there is no benefit there should be no burden. If the benefit be destroyed the burden should end. The requisite universality of the neighborhood plan was referred to by the late Vice Chancellor Green in the case of DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 24 Atl. 388, in the following language:

"The law, deducible from these principles and the authorities, applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, 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, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme and the covenant has been part of the subject-matter of his purchase.

"The right of action from this would seem to be dependent as much on the fact of the general scheme as on the covenant—a very important consideration in a case in which the question arises whether certain threatened acts are in violation of the covenant, if any ambiguity exists as to its scope and meaning."

Where the restrictions are not universal, or after frequent violations of the restrictions have been permitted, then the neighborhood scheme will be considered abandoned.

About two years after the deeds were made by the Chelsea Beach Company to the complainant's and defendant's predecessors in title, some question evidently arose as to whether or not the restriction "that no building shall at any time be erected within 20 feet of the front property line of any street or avenue, except on Atlantic avenue" applied to lots located at the corners of Atlantic avenue and intersecting streets so as to require buildings erected on these lots to be located 20 feet from the property line of the side streets. On April 30, 1889, the Chelsea Beach Company made a deed to Charles R. Myers which contained the usual restrictions and at the end of the restrictions a copy of a resolution, purporting to have been passed by the company, reading as follows:

"By resolution of the board of directors of the said Chelsea Beach Company, the above restriction on the Atlantic Avenue lots is rendered null and void and the following restriction is hereby made a part of this conveyance: That no building shall at any time be erected on a corner lot on Atlantic Avenue within 5 feet from the side street property line, but may be erected to full party line of adjoining lot, and all other Atlantic Avenue lots may be erected to full party line of adjoining lots."

Thereafter in its conveyances the Chelsea Beach Company, after the restrictions, recited this resolution, so that after 1889 the restrictions did not require buildings erected on the corner lots on Atlantic avenue to stand back 20 feet from the property line of side streets. In the tract of land of the Chelsea Beach Company there are on Atlantic avenue 16 corner lots. On 10 of these corners buildings are now erected within less than 20 feet of the property line of the side streets.

On July 27, 1922, Scull, having learned that Eilenberg proposed to erect on his lot at the...