Smith v. Spencer
| Decision Date | 14 February 1913 |
| Citation | 87 A. 158,81 N.J.Eq. 389 |
| Parties | SMITH et al. v. SPENCER. |
| Court | New Jersey Court of Chancery |
Suit by Adela J. Smith and others against Bird W. Spencer. Heard on pleadings and proofs. Bill dismissed.
Andrew Foulds, Jr., of Passaic, for complainants.
Henry C. Whitehead, of Passaic, for defendant.
In 1901 the Van Nordt Land Company owned the two tracts of land which are now owned by the complainants and the defendant, respectively, lying in one plot, and undivided. The plot now owned by the defendant was conveyed by it on June 29, 1901, and by mesne conveyances the title became vested in the defendant. It conveyed the complainants' land on April 3, 1902. In the conveyance which it made of the complainants' tract a covenant was inserted, the portion of which now in dispute reads as follows: "Only one house shall be built upon said plot, which house shall cost not less than $3,500, and shall be set back at least thirty-five feet from Paulison avenue and at least ten feet from the southeast line of said plot." There was also a covenant in the same deed by the grantor that when it should convey the adjoining plot which is now owned by the complainants, it would insert therein a covenant as follows: "Only one house shall be built upon the said plot, which house shall cost not less than three thousand five hundred dollars, and shall be set back at least thirty-five feet from Paulison avenue and at least ten feet from the above-described premises which are conveyed by this instrument to the aforesaid party of the second part."
When the Van Nordt Land Company conveyed the tract now owned by the complainants, the covenant agreed upon was inserted in the deed. It was conceded that the covenants run with the land, and that the respective owners, in the erection of dwelling houses thereon, should each keep away from the boundary line, and should each not approach it nearer than 10 feet. The complainants' house was erected first. The third floor thereof and the eaves of the roof overhang the restricted space 2 feet and 2 inches, but the overhang is 24 feet and 8 inches above the level of the ground.
The defendant began the erection of a house on his plot in August of 1911. After the foundation had been laid out, the complainants suspected that some portion thereof was within the restricted area, and so notified the defendant. The defendant, however, continued his building operations and finished the house as contemplated. The eaves of the defendant's house overhang the restricted space two feet and two inches, and there is a cellarway which extends three feet, or thereabouts, further into the restricted space. This cellarway is covered with inclined doors, and does not extend upwards beyond the level of the foundation.
Before the defendant's house had been finally completed, and on December 18, 1911, the complainants filed their bill, praying for an injunction to prevent the defendant from locating any building upon his said plot of land which should not be at least 10 feet from the said boundary line, and that he be compelled to remove any portion of his building which might be found to be within 10 feet of such boundary line, and that he might be enjoined and restrained from maintaining a kitchen on the avenue front of his building, and further restrained from operating or conducting his building in such a manner as to constitute a nuisance, or as to injure the property of the complainants, with a prayer for further relief.
The answer admits the covenants and the locations of the two buildings and the amounts of the encroachments substantially as they are hereinabove set out, and on the hearing there was very little, if any, dispute about the facts.
That portion of the bill which prays that the defendant may be restrained from using his kitchen and maintaining a nuisance must be disregarded. The defendant's house has never yet been occupied, and the kitchen has never been used; no nuisance has yet been committed or threatened, and on this issue the decision must be for the defendant.
It is quite plain from the proofs that the violation of the covenant in question by both the complainants ...
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