Wilmington Manor v. Grant
| Decision Date | 18 June 1954 |
| Citation | 105 A.2d 783,34 Del.Ch. 487 |
| Parties | WILMINGTON MANOR, Inc. v. GRANT et al. |
| Court | Court of Chancery of Delaware |
Albert W. James and William F. Lynch, II, of Morris, James, Hitchens & Williams, Wilmington, for plaintiff.
Joseph A. L. Errigo and Robert C. Barab, Wilmington, for defendants Kenneth M. Grant, Jr., Marie Grant, David T. Blakely and Lovie M. Blakely.
SEITZ, Chancellor.
Plaintiff, Wilmington Manor, Inc., owner of a vacant lot admittedly subject to residential restrictions of record, seeks by its verified complaint: (1) a declaration that because of the radical change in the surrounding neighborhood the restrictions are no longer operative as to plaintiff's premises, or (2) a declaration that there has been such a radical change in the character of the surrounding neighborhood that the restrictions are modified to the extent that plaintiff's premises may be used for commercial or business purposes.
The defendants who are represented have moved to dismiss the complaint or for summary judgment. One ground of defendants' motion to dismiss is that this court has no jurisdiction because the 'actual controversy' required by the declaratory judgment statute is absent. In order to resolve the issue I must narrate the record facts.
The complaint alleges that the plaintiff is the owner of an unimproved lot in Section D of Wilmington Manor and that this lot is on the northwesterly corner of Jefferson Avenue and duPont Boulevard. It alleges further that this lot is subject to residential restrictive covenants imposed on it and other land in the Manor by the so-called Jensen deed of September 14, 1941. The restrictions are to continue in effect until January 1, 1969 at least, and persons owning any other lots in Wilmington Manor are given the right to enforce compliance.
It is alleged that when the restrictions were imposed on plaintiff's premises in 1941, the complexion of the immediately surrounding neighborhood was substantially residential and conformed to the general pattern of the development of Wilmington Manor. It is further alleged that there has been a radical change in the character of the neighborhood with the resultant destruction in the essential purpose of the original restrictions. The complaint then sets forth certain illustrations in support of the allegation, i. e., erection of a motion picture theatre on the adjoining lot to the south; erection of a gasoline filling station on the lot directly across from the premises on Jefferson Avenue; widening of the duPont Boulevard from 80 feet to 200 feet and its separation into a parkway; erection of the Delaware Memorial Bridge with the consequent increase of motor vehicle traffic on the Boulevard at Wilmington Manor; erection of communities to the north and south of Wilmington Manor which, although primarily residential in character, have dedicated the land fronting on duPont Boulevard to commercial or business use.
Plaintiff alleges that it desires to sell the premises for commercial or business use but it further alleges that the named defendants contend that the changes in conditions which have occurred are not sufficient to justify the removal of the restrictions on the premises and therefore will not sign any release of restrictions. The result is that plaintiff is compelled to let the land stand idle.
Plaintiff joins as defendants the owners of lots in Section D of Wilmington Manor which are roughly adjacent to or contiguous with plaintiff's premises. Plaintiff alleges that these defendants adequately represent the class which consists of the owners of lots in Sections A, B, C, and D of Wilmington Manor. Plaintiff alleges that there are about 465 such lot owners and it would be impractical to bring them all before the court.
The court is confronted at the outset with the jurisdictional question as to whether there is an actual controversy as required by 10 Del.C. § 6501 conferring declaratory judgment jurisdiction on this court. Plaintiff relies solely on the declaratory judgment statute and the ...
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City of Wilmington v. Delaware Coach Co.
...Company argues that there is not before the Court an actual controversy which is fundamental to jurisdiction. Wilmington Manor v. Grant, 34 Del.Ch. 487, 105 A.2d 783 (1954). See, also, Marshall v. Hill, 8 Terry 478, 93 A.2d 524 The complaint does not allege in so many words an actual contro......
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Rollins Intern., Inc. v. International Hydronics Corp.
...outside the pleadings and consider both affidavits and depositions. 2A Moore's Federal Practice, § 12.14. And see Wilmington Manor v. Grant, 34 Del.Ch. 487, 105 A.2d 783 (1954), in which this Court found that plaintiff's pleading stated an actual controversy but, after looking at its answer......