Seidel v. Mills

• Decision Date: 07 May 1915
• Citation: 96 A. 899,84 N.J.Eq. 285,84 N.J.Eq. 507
• Parties: SEIDEL et al. v. MILLS et al.
• Court: New Jersey Supreme Court

96 A. 899

84 N.J.Eq. 285

84 N.J.Eq. 507

SEIDEL et al.

v. MILLS et al.

Court of Errors and Appeals of New Jersey.

May 7, 1915.

Appeal from Court of Chancery.

Bill by Franklin B. Seidel and others against Robert D. Mills and others. Prom a decree for defendants, complainants appeal. Affirmed.

The suit is to enjoin the erection of more than one house on two lots of land adjacent to each other, each lot being 25 by 100 feet. Heard on bill, answer, replication, and proofs taken in open court.

The following is the opinion of Stevenson, V. C:

The complainant owns and resides in a two-family house erected upon a plot 83 feet and 4 inches wide by 100 feet deep. The defendant Robert D. Mills was threatening to erect two separate houses on his adjacent two lots, one of which later was conveyed to the defendant Pauline R. Hovey. The theory of the bill is that a large tract of land, embracing the lots of the complainants and defendants, was originally laid out and mapped, and a "neighborhood settlement" for the benefit of all future lot owners was established, according to which a scheme of restrictions was created, and that all future owners of these lots have the benefit of this general scheme. The principles which have been laid down in many eases, of which in this state De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, is the leader, supply the theory of the complainants' case. I am entirely unable to discover any existing scheme or neighborhood settlement which establishes any right in the owner of the complainants' house and lot to prevent, by injunction, the erection of separate residences on the two lots belonging to the defendants. The result is that the complainants' bill must be dismissed.

The following are the main considerations which lead to the result above stated:

The whole tract, known as Eldorado, was used as an amusement park until about 1894. Upon a foreclosure of mortgages a master in chancery caused the tract to be laid out in streets and lots, 217 in number. The lots are uniformly 25 feet wide, and except where the lines of the tract required them to be longer or shorter, they are uniformly 100 feet in depth. The map is filed in the Hudson county register's office, and lots were sold at auction according to the map. No restrictions as to buildings were made in the master's deed or were indicated on the map. In 1895 about half a dozen persons who had purchased the majority of the lots, constituting a large tract, filed a map modifying the master's map, widening some streets, and making some other changes, but leaving the tract still divided into lots 25 feet in width, and making no suggestion of any restriction in respect of buildings. These joint owners, from 1895 to 1900, made 22 deeds, of which 15 were made to individuals, who, presumably, in many instances, at least, bought with the intention of building. One of these deeds conveys five lots; three deeds convey three lots each; and eight deeds convey pairs of lots, and three deeds convey single lots 25 feet by 100. The most of these deeds contain elaborate restrictions, including some form of restriction in regard to the number of buildings to be erected upon the land conveyed. The form of covenant used with certain variations is set forth in the case of Walker v. Renner, 60 N. J. Eq. 493, in which case the Court of Errors and Appeals construed the covenant as it appeared in that case so as to leave the owner of a pair of lots free to erect a separate residence on each. No general scheme to prohibit the erection of residences on separate lots can possibly be discovered from an examination of these deeds of the joint owners, if, indeed, under the circumstances of this case, a general scheme could be created in that way. In the three instances in which single lots were conveyed, the restriction prevented the erection of more than one residence. Where the five lots were conveyed the restriction was that the lots were not to be subdivided, "and that no more than one residence is to be erected upon the same." On May 1, 1900, the joint owners made seven deeds, conveying different parcels of this tract to the Eldorado Realty Company. One parcel, containing over a dozen lots, was conveyed by one of these deeds with no restrictions whatever. Seventeen lots were conveyed by another deed, with restrictions against nuisances only. Twenty or 30 lots, including gores, were conveyed without any restriction whatever. By two separate deeds, what is evidently the most valuable and desirable portion of the property for residences was conveyed, and the restrictions as to buildings are very different, and this difference constitutes a very important fact in this case. In one of these two deeds conveying a large number of lots, including the lot and a third of the complainants, and the two lots of the defendants, and many adjacent lots, the restriction was that "no more than one residence is to be erected upon one lot." In the other of the two deeds above mentioned, conveying a large number of lots, the restriction is that: "None of the single lots hereby conveyed is to be subdivided, and that no more than one residence is to be erected upon any two lots."

If, under the circumstances, these seven deeds could have the effect to create a general "scheme" with respect to the erection of residences for the benefit of all further grantees— about which matter I express no opinion—it would seem that the plan or scheme was that the Eldorado Company should hold the less desirable lots free from any restriction as to buildings, and that the remainder of the lots should be divided into two classes for one of which the restriction should be that no more than one residence should be erected upon any one lot 25 by 100 feet, and for the other, the restriction should be that the lots should go in pairs, and that no more than one residence should be erected upon any two lots. The important fact is that the complainants' lot and a third and the defendants' two lots are both subject to this original suggested scheme, imposing the restriction that no more than one residence should be erected upon one lot 25 by 100.

The Eldorado Company began in the year 1900 making conveyances of the lots which they had acquired from the joint owners. A brief abstract of over 50 of these deeds has been put in evidence, exhibiting the restrictions inserted therein with respect to buildings. These restrictions vary widely. If we may assume that by the seven deeds to the Eldorado Realty Company a scheme was established for having some lots unrestricted and others restricted by the rule, one building to one lot, and still others restricted by the other...