Trout v. Lucas

• Decision Date: 29 June 1896
• Citation: 35 A. 153,54 N.J.E. 361
• Parties: TROUT v. LUCAS et al.
• Court: New Jersey Court of Chancery

35 A. 153

54 N.J.E. 361

TROUT

v. LUCAS et al.

Court of Chancery of New Jersey.

June 29, 1896.

Bill by William W. Trout against Margaret E. Lucas and others, to which defendants demur. Demurrer sustained.

Hawkins & Durand, for complainant.

F. P. McDermott, for demurrants.

EMERY, V. C. The object of this bill is to enforce a covenant relating to building restrictions contained in a conveyance of lands made to one John C. Lucas by the Spring Lake Beach Improvement Company, and to compel the removal of a portion of an hotel building which has been erected beyond the limits fixed by the covenant. The case is heard on demurrer to the bill, which discloses the following facts as the basis for relief: The Spring Lake Beach Improvement Company, which was incorporated for the purpose of developing and improving real estate, and the erection of buildings thereon, purchased for these objects a tract of about 600 acres, adjoining the Atlantic Ocean, and situate in Wall township, Monmouth county, which it laid out into squares and lots, or building sites, designating the tract by the name of "Spring Lake." A map of the tract, showing the streets, avenues, and the lots, by numbers, was made in 1876, and filed in the office of the clerk of the county. Nearly three years after the purchase, and on January 20, 1878, the company conveyed to one John C. Lucas lots Nos. 19 and 20 in block No. 21, as shown on the map or plan of lots, being lots adjoining each other, fronting on Atlantic avenue, and one of the lots (No. 20) being a corner lot fronting also on First avenue. The two lots together constituted one tract fronting 100 feet on Atlantic avenue and 150 feet on First avenue, and being at the northwest corner of said avenues. The deed contained the following condition on the part of the grantee, viz.: "That the party of the second part, for himself, his heirs, executors, administrators, and assigns, covenants that he and they shall never build on the said premises within 25 feet of the front line thereof, on avenues running east and west, and also on Ocean avenue." Atlantic avenue, on which these Lucas lots front, runs east and west. In the same year (1878) in which he received his deed, John C. Lucas erected a large frame hotel building on these lots; the building being three stories high, about 100 feet long, and 35 feet deep; the front of the building (100 feet) fronting on First avenue, and the south end (35 feet) fronting on Atlantic avenue. The south line of the building was only 21 feet and 7 inches from the front line of Atlantic avenue, instead of 25 feet, as required by the covenant; being thus 3 feet and 5 inches over the line. On March 9, 1878, about two months after the above conveyance to Lucas, the Spring Lake Company conveyed to one David C. Spooner lot No. 11 of the same block (21); this latter lot, being on the northeast corner of Atlantic avenue and Second avenue, fronting 50 feet on Atlantic avenue, and adjoining lot 12, which was on the east. This deed was, so far as appears by the bill, the first conveyance, after the Lucas deed, of any lots on block 21 on Atlantic avenue, and this deed contained a condition or covenant similar to that contained in the Lucas deed. The title to this lot No. 11 remained in Spooner, or his devisees, for nearly 8 years, and until August 16, 1886, when it was conveyed by the executor of Spooner to one Thomas A. Ward; and Ward and his wife on January 9, 1888, conveyed it to the complainant. The deeds to Ward and the complainant contained the same form of restriction. On February 1, 1886, and nearly two years before his purchase of lot No. 11 from Ward, the complainant purchased of the company lots 12,13, 14, and 15 in block 21, together fronting 200 feet on the north side of Atlantic avenue, and 150 feet deep, and his deed for these lots contained the same restriction on his part in the winter of 1880 and 1886 the defendant Lucas, as the bill alleges, reconstructed his hotel building, and made additions thereto; one of the additions being an octagon tower, forming part of the building on the south end of said building, commencing at the second floor, and extending above the roof, and extending outward, southward, from the line of the said building. This tower extends, as the bill states, 10 feet south from the line of the building, and is only about 11 feet from the front line of Atlantic avenue. In the following year (1887) the complainant erected houses on two of his lots, 25 feet from the front line of the avenue, at a cost of $10,000; and, as the bill says, it was while building his cottages that he discovered the hotel building encroached on the 25 feet reserved.

The additional facts alleged in the bill, upon which is based complainant's equity to require a removal of the portion of the Lucas buildings in question, are that the restrictions in the several deeds were created by the company, and authorized in the conveyances, for the benefit of all the lots and lot owners on said Atlantic avenue, in block No. 21; that Spring Lake is a summer resort, sought principally because of its bordering on the ocean; that the lots of complainant are just west of the Lucas lots, which lie between complainant's lots and the ocean; and that it is necessary to the complainant, for the full use and enjoyment by him of his said premises, that the condition should be observed and kept by all owners owning lots between complainant's premises and the ocean; and that all buildings erected on their lots should be at least 25 feet back from the front line of Atlantic avenue. The complainant claims the right of enforcing this condition in equity against the owners who violated it before his purchase, and to have the portion of the buildings encroaching on the 25 feet removed. John C. Lucas having died in August, 1888, his widow and infant heirs are made parties defendant to the bill, which was filed on June 17, 1889. A general demurrer for want of equity was filed on behalf of all of the defendants, with additional specifications of acquiescence, laches, and want of parties.

Under the above facts, it seems to me that the whole basis of complainant's right to relief rests upon a right which is, in its nature, purely equitable. The defendants, so far as relates to the condition in question, are not under any legal liability to the complainant, for the reason that there is no privity between them, either of contract or estate. But courts of equity, in relation to restrictions of this character, which contemplate a general plan of building for the common benefit of purchasers of lots, recognize the right to enforce them in equity, at the instance of the original grantor or subsequent purchasers of lots, on grounds independent of legal liability. Vice Chancellor Green, in De Gray v. Clubhouse Co: (1892) 50 N. J. Eq. 329, 24 Atl. 388, after a very exhaustive and learned review of the cases, states, on page 340, 50 N. J. Eq., page 392, 24 Atl., the principles governing this class of cases where a general plan or scheme is relied on, as follows: "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 learned vice chancellor also says (page 340, 50 N. J. Eq., page 392, 24 Atl.) "that the equitable right of action seems to be dependent as much on the fact of the general scheme as on the covenant." This case was...