Scull v. Eilenberg
| Decision Date | 27 November 1922 |
| Docket Number | No. 52/211.,52/211. |
| Parties | SCULL et al. v. EILENBERG. |
| Court | New Jersey Court of Chancery |
(Syllabus by the Court.)
Suit by Montice L. Scull and others against John P. Eilenberg. On bill for injunction. Bill dismissed, except as to relief prayed for by complainant Scull, which is granted.
Cole & Cole, of Atlantic City, for complainants.
Bourgeois & Coulomb, of Atlantic City, for defendant.
The bill was originally filed by the complainant, Montice L. Scull. On the 7th day of August, Phoebe Adams and Jennie A. Sharpe were admitted as parties complainant, and on September 11, 1922, W. Kendall Read, Joseph A. Greenberg, R. Augusta Healy, Charles Mundy, Edward A. Bookmyer, and Martin E. Brigham were also added as parties complainants. At the hearing it appearing that the title to the Bookmyer property was in the wife, Anna H. Bookmyer, she was substituted in place of Edward Bookmyer, and for the same reason Jennie Greenberg was substituted for Joseph J. Greenberg, and Laura M. Mundy for Charles Mundy.
The bill is filed to restrain the defendant from erecting a building at the south westerly corner of Atlantic and Montpelier avenues, in Atlantic City, within 20 feet of said Montpelier avenue.
The Chelsea Beach Company was, prior to 1887, the owners of a large tract of land in Atlantic City, which they plotted into lots and streets.
The complainants and defendants are owners of lots upon this tract; that owned by the complainant Scull was conveyed by the Chelsea Beach Company by deed dated May 28, 1887; that of complainant Sharpe, by deed dated June 4, 1887; that of complainant Adams, by deed dated May 7, 1892; that of complainant Bookmyer, by deed dated January 13, 1887; that of complainant Greenberg, by deed dated March 31, 1887; that of complainant Brigham, by deed dated March 2, 1889; that of complainant Heaton, by deed dated June 27, 1887; that of complainant Read, by deed dated June 24, 1887; and that of defendant Eilenberg, by deed dated March 16, 1887.
Each of the above-recited deeds contained restrictions as follows:
"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 twenty feet of the front property line of any street or avenue, except on Atlantic avenue, nor within five 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, providing the same is not built within five feet of the outside lines of the said lots; nor within twenty feet of the front property line thereof, and also, that no building of less value than five hundred dollars shall be erected thereon. * * * "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 own 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 his 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 land of the complainant Mundy was conveyed by the Chelsea Beach Company to Clement J. Adams by deed dated August 22, 1893, containing restrictions of the same general character as the other deeds, excepting in that concerning the building within 20 feet of the front property line the words "except on Atlantic avenue, Arctic avenue, and the ground between Arctic avenue and the Thoroughfare," were added.
Adams and wife, upon the date of the deed to him, conveyed the premises to the Chelsea Land & Improvement Company, and on May 3, 1900, that company conveyed the premises now owned by the complainant Mundy to her husband, Charles E. Mundy, and each of these deeds contained the restrictions as in deed from Adams.
At the hearing, objection was made to testimony concerning this property, upon the ground that it was too remote from the land in controversy. The testimony was admitted; but in the determination of the question at issue the rights of this complainant have not been considered, as it has been unnecessary to do so. The same may be said of the complainant Bookmyer.
The complainant also offered in evidence a deed from the Chelsea Beach Company to Charles R. Myers, dated April 30, 1889, which contained the usual Chelsea Beach Company restrictions, and also contained copy of resolution purporting to have been passed by said corporation. This resolution reads 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 five feet from the side street property line, but may be erected to full party line of adjoining lot; and...
To continue reading
Request your trial