Shorefront Park Imp. Ass'n v. King

• Decision Date: 10 December 1968
• Citation: 157 Conn. 249,253 A.2d 29
• Court: Connecticut Supreme Court
• Parties: The SHOREFRONT PARK IMPROVEMENT ASSOCIATION Inc. v. A. Lewis KING et al.

Page 29

253 A.2d 29

157 Conn. 249

The SHOREFRONT PARK IMPROVEMENT ASSOCIATION Inc. v. A. Lewis KING et al.

Supreme Court of Connecticut.

Dec. 10, 1968.

Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for appellants (defendants).

John Keogh, Jr., Norwalk, and Robert A. Fuller, Wilton, with whom, on the brief, was Alfred W. Burkhart, Norwalk, for appellee (plaintiff).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Judge.

This action was instituted by several individual owners and by an incorporated association representing other owners of lots designated on a subdivision map to prohibit by injunction a proposed use of several lots in the subdivision, which use, it is claimed, would be in violation of restrictive covenants imposed upon all of the lots. The defendants have appealed from the judgment of the Superior Court, which found the issues for the plaintiffs and granted them injunctive relief.

With such minor corrections as the defendants have pressed and to which it appears they are entitled, the record discloses the following material circumstances. In 1924, a fifty-acre tract of land in Norwalk, on the west side of Norwalk Harbor, was subdivided by The Shorefront Park Company. A subdivision map was filed in the office of the town clerk, and lots delineated on the map were sold to the individual parties to this action or to their predecessors in title. All of the lots were conveyed by The Shorefront Park Company subject to certain restrictive covenants, which, so far as in any way material to the issues in this case, are printed in the footnote. ¹

The subdivision map shows the lots which abut on the harbor area as numbered lots and as extending almost, but not all the way, to the approximate mean high-water mark. Beyond that lot line and extending easterly into the harbor, the map shows an extension of the lateral boundaries of each such lot, and the land lying therein and appurtenant to each numbered lot is disignated by its respective appurtenant lot number, followed by the letter A, viz., lot 22A is an extension easterly past the high-water mark and into the harbor of lot 22. The individual defendants are the owners of lots 22 through 28 as shown on the subdivision map, together with the appurtenant rights in and to the land shown on the map marked lots 22A through 28A. In each conveyance, the deed for The Shorefront Park Company conveyed a fee simple to the numbered lot 'together with all the right, title and interest of the grantor in and to' the A lot appurtenant to the numbered lot and extending from the easterly side of the numbered lot 'to the waters of Norwalk Harbor.' The metes and bounds description of the numbered lot and the description of the appurtenant A lot are thereafter followed by the restriction hereinbefore noted, which applied to 'said premises.' All of the numbered lots within the tract have long since been sold by the developer and one-family residences have been erected on them which are designed for year-round use and are well maintained and kept in good repair. The community is residential in character, and none of the lots or buildings are now being used or have in the past been used for manufacturing, mercantile or advertising purposes or for any business or trade.

The defendants King and Chacon have leased their land to the defendant corporation. The Shorefront Yacht and Marina Company, Inc., and the defendants have filed an application with the building inspector of the city of Norwalk for a permit to build a yacht club on the premises to be known as The Shorefront Yacht Club and Marina. The building plans for the yacht club provide for the use of the two existing residences on the defendants' properties as clubhouses and for club purposes. Each of the applications and each of the permits is for permission to 'convert a dwelling to a club house * * * interior alterations only to be occupied by The Shorefront Yacht Club & Marina Inc.' Each bears the notation: 'Req. off street parking 30 spaces for 2 Bldgs-# A & B black topped marked & lighted.' The lease to the corporation describes the leased property as bounded on the west by the easterly boundary line of lots 22, 23, 24, 25, 25A, 26, 27 and 28, as shown on the subdivision map, and on the east as extending 'out to the most easterly allowable limit of private use in Norwalk Harbor of properties abutting said harbor on the Westerly side thereof.' It also includes a right to pass and repass for all lawful purposes over and across two forty-foot-wide strips of land upon such portions of lots 22, 23, 24, 25, 25A, 26, 27 and 28 as the lessors shall designate, to be 'so located as to give to the Lessee reasonable and proper access to the demised premises for the full and useful operation of a boat club on the demised premises.' The club's plans include a proposal to place floats, piers and other docking facilities on or adjacent to the property of the defendants marked lots 22A-28A. ²

The defendants have not attacked the conclusions of the trial court that the defendants had actual or constructive knowledge and notice of the restrictive covenants when they acquired lots 22 through 28, and the appurtenant A lots, and that there has been no change of conditions or of circumstances which would serve to defeat or 'mitigate against' the intention of the common grantor in imposing the restrictive covenants on the premises. Nor do they contest the finding that the building plans for the yacht club provide for the use of the existing residence buildings 'as club houses and for club purposes' and that the operations of the club and marina would be similar to such operations as are customarily carried on by yacht clubs and marinas. They have not briefed their claims that the court erred in concluding that the defendant's lots are subject to the restrictive covenants and that the plaintiffs, by virtue of their title to their respective lots, are the owners of reciprocal rights in the nature of equitable easements, which rights are enforceable. These assignments of error are, accordingly, treated as abandoned. Wood v. Town of Wilton, 156 Conn. 304, 306, 240 A.2d 904; Johnston, Jewels, Ltd. v. Leonard, 156 Conn. 75, 77, 239 A.2d 500.

The defendants do claim that the court erred in its remaining conclusions that the proposed use of the buildings now situated on the premises would constitute a use of the buildings for a purpose other than as a private dwelling within the meaning of the restrictive covenants; that the use of lots 22 through 28 as a means of access to and egress from the proposed marina and yacht club to the proposed piers and moorings on the A lots would constitute a violation of the first clause of the restrictive covenant; that the use of lots 22 through 28 for the purpose of parking automobiles and other uses incidental to the operations of the yacht club and marina corporation for the benefit of its members and patrons would constitute a violation of the same restrictive clause; that the use of lots 22 through 28 for the maintenance and operation of a clubhouse in which any merchandise was sold, advertised for sale or displayed for sale would constitute a use of the premises for mercantile or advertising purposes in violation of that...