Opinion
06-10-1908
McNICHOL v. TOWNSEND.
Bourgeois & Sooy, for complainant. Thompson & Cole, for defendant.
Suit by Anastasia A. McNichol against Walter R. Townsend to enforce a restrictive building covenant. Heard on final hearing, on bill, answer, replication, and proofs. Bill dismissed.
See 67 Atl. 938.
Bourgeois & Sooy, for complainant.
Thompson & Cole, for defendant.
LEAMING, V. C. I am unable to advise a decree for complainant. The testimony presented at final hearing discloses no facts which can operate to modify the views expressed by me on the motion for a preliminary injunction, as reported in 67 Atl. 938. The evidence at final hearing discloses that, prior to October 19, 1888, when Brown conveyed to Graham the lot now owned by defendant, Brown had conveyed all of the lots on either side of States avenue but three, namely, the lot then conveyed, the lot at the northwest corner of States and Pacific avenues, and the lot now owned by complainant. Of the several conveyances so made, about one-half in number contained no restrictive covenant against erecting buildings adjacent to the avenue. The conveyances which contained no such restrictive covenants were the following: Deed dated March 6, 1880, to Mary Woelpper, and a subsequent deed to the same grantee dated December 7, 1880, increasing the width of the lot first conveyed from 70 to 80 feet, and a subsequent deed of confirmation to the same grantee, dated December 15, 1881. Deed dated November 17, 1881, to William Wilson. Deed dated December 1, 1881, to George M. Troutman. Deed dated October 21, 1881, to Anna Martha Kremer. Deed dated October 3, 1903, to Horace C. Disston. Of two lots conveyed by this deed, one is now owned by F. E. Hammell and another by William Aiknian, free from building restrictions. Deed dated May 25, 1883, to the United States Hotel Company. This deed contained a restriction "that all buildings erected on said land shall be of good style and shall conform as nearly as may be with the cottages now thereon erected." This covenant may relate to the distance buildings are to be erected from the avenue, but that construction is doubtful. These details render it clearer to me that it was at the preliminary hearing that no general scheme can be properly said to have existed for the perpetuation of a defined building line, by the exaction of uniform covenants for the benefit of the several purchasers of lots. In the absence of such a general scheme I am unable to find any evidence which justifies the conclusion that the covenant now, in question was for the benefit of the remaining lots owned by Brown when the Graham conveyance was made. Under the opinion in Hemsley v. Marlborough Hotel Company, 62 N. J. Eq. 164, 170, 50 Atl. 14, adopted by the court of Errors and Appeals in 63 N. J. Eq. 804, 52 Atl. 1132, such evidence must be regarded in this court as a necessary element to support the claim asserted by complainant.
I will advise a decree dismissing the bill.