Summary
In Ronan v. Barr, 82 N.J. Eq. 563, 568-569 (Ch. 1913), complainants sought to restrain the erection of a public garage as a nuisance.
Summary of this case from Priory v. Borough of ManasquanOpinion
12-20-1913
RONAN et al. v. BARR.
George S. Silzer, of New Brunswick, for complainants. Edward W. Hicks, of New Brunswick, for defendant.
Bill by Michael Ronan and others against Thomas M. Barr. Decree for defendant.
George S. Silzer, of New Brunswick, for complainants.
Edward W. Hicks, of New Brunswick, for defendant.
BACKES, V. C. This is a bill to enforce an implied restrictive covenant upon lands. The case made by the bill is: On August 3, 1907, the Metuchen Building Company acquired the fee to lots 3, 24, 25, 26, 27, 28, part of 4 and 5, a part of lots 16 (and 17), and lots 7, 11, 12, 13, 14, (15), 18, 19, 20, 21, and 32 of a plot entitled "A map of 32 lots belonging to the estate of E. S. Peck, situate at Metuchen, New Jersey." In order to sell the lots and induce persons to buy, the company adopted a general plan and uniform scheme for their development, which included that each lot should be sold subject to this covenant:
"(1) That the said party of the second part, his heirs at law, legal representatives or assigns, will not erect or permit, on any part of the herein described premises, any building costing less than three thousand dollars. Excepting however, such barn, stable, or other building for horses and vehicles as is appurtenant to a private residence, but no part of such barn and stable, if erected, shall be less than one hundred feet from the northerly line of Highland avenue, nor shall more than one such building and one such stable be erected or permitted on the premises herein mentioned and described.
"(2) And the party of the second part, for himself, his heirs at law, legal representatives and assigns, further covenants that he or they will not use or permit to be used the said premises or any part thereof for a milkman's stable, piggery, hennery, slaughterhouse, smith shop, forge, furnace, brass foundry, tin, nail, or other factory or any manufactory for the manufacture or making of gunpowder, glue, varnish, vitriol, ink or'preparing of skins, hides or leather or any brewery, distillery, oil or lamp black factory or any other nuisance whatsoever.
"(3) And the said party of the second part for his heirs at law, legal representatives and assigns, does hereby further covenant and agree to and with the party of the first part, its successors and assigns, that neither the said party of the second part nor his heirs at law, legal representatives or assigns will sell or suffer or allow to be sold on the premises hereby conveyed, or any part thereof, any spirituous liquors or ale, beer or wine or intoxicating liquors or any kind.
"(4) The party of the second part, for himself, his heirs at law, legal representatives and assigns, does hereby further covenant and agree to and with the party of the first part, its successors and assigns, that no building shall be erected on the premises hereby conveyed nearer than thirty feet from the northerly establishd street line of Highland avenue. But it is understood that porches or verandas and bay windows of reasonable dimensions from the main building shall be allowed to project into the abovementioned restricted part of the premises hereby conveyed.
"All restrictions and covenants in this instrument contained shall continue in force until the first day of January, 1928, and no longer."
"The reason of said covenants or restrictions in the deeds to purchasers being intended for the benefit of the said company in selling said lots and securing a good price therefor, and also intended for the benefit of each purchaser of lots upon said tract, the said tract being intended and held out by said Metuchen Building Company to be used only for residential purposes." Upon application to the company for the purchase of lots, thecomplainants were told that the tract was restricted, and that no lot could be purchased unless the deed contained the above covenant, and that each purchaser of a lot would be protected in his purchase in that all other conveyances would be likewise restricted. Relying upon these representations, the complainants Greenwald, on April 16, 1909, bought lot No. 14 and a part of lot No. 13. On April 17, 1911, the complainants Litterest purchased parts of lots Nos. 12 and 13, and on February 18, 1912, the complainants Ronan acquired lot No. 28. The covenant was incorporated in the Ronan deed. (The bill does not disclose whether they were inserted in the Greenwald and Litterest deeds.) Lansing Y. Lippincott bought lot No. 24 on August 14, 1909, and on July 8, 1913, Lester B. Hebberd purchased lot No. 19. (They are not complainants.) Their lots are restricted. On September 9, 1913, the company sold to the defendant Thomas M. Barr lots Nos. 3, 4, and 5, upon which he is about to erect a public garage in violation of the covenant. The Barr deed is free of incumbrance. It is charged that he took his title with notice of the company's scheme and of the restrictions to be imposed in the execution of that scheme. The prayer of the bill is that Barr may make answer, "and that he may be decreed to answer why a writ of injunction restraining him, his agents, servants, and contractors, from proceeding further with the erection of a public garage on said lots." This is verbatim the special prayer. The bill contains a general prayer for relief, and I shall treat it as including a special prayer for an injunction restraining the defendant from building a public garage.
The Peck tract is a quadrangular plot of ground, with lots of irregular sizes, fronting on Main street and Middlesex and Highland avenues, and numbered consecutively from Nos. 1 to 31, inclusive. Lot No. 32 is detached. It was plotted by the Peck estate in 1891, and from time to time the estate sold lots to various parties, without burthen, until August 3, 1907, when the remaining 17 lots and parts of lots so scattered throughout the tract were sold to the Metuchen Building Company, the common grantor of the complainants and defendant. Store buildings had been erected on lots fronting on Main street. At this time lots Nos. 8, 9, 10, 22, and 23 were occupied by a social club and lots 6 and 7 by a civic association. Lot No. 15 and the rear of 16 and 17 were owned by Greenwald and his partner Soper; the rear of the lots Nos. 16 and 17 being used for a carpenter shop. No. 30 was occupied by one Hamm as a public garage; No. 29 by a two-family dwelling house. A fire engine house was on lot No. 22, and the land westerly of it and the Hamm garage to Main street was built up by stores, so that, when the Metuchen Building Company took title to the remnant of the tract, this heterogeneous aggregation of structures made impossible a uniform plan or scheme of building covering the entire plot. The fact, however, is that the company ventured the imposition of restrictions upon the use of the lots it sold. Sometimes they were put in the deeds, and at other times they were stipulated by separate agreement. They vary widely. Some restrict the use of the lots to buildings, while others require the building to be a dwelling house. One owner has the privilege of raising chickens on his lot, which is denied to others. Some may build factories, while others cannot. Factories of certain kinds may be built by one owner; others are prohibited. Some deeds contain a clause against nuisances, which is omitted in others. In fine, instead of uniformity of restrictions, there is added confusion.
1. The complainant's counsel at the hearing and upon the argument urged that it was represented to the complainants at the time they took their deeds that the lots were to be used for residential purposes only, and that this representation should be construed in connection with the covenant set out in the bill and enforced as a part of the restrictions. I do not pause to consider the merit of this contention except to note that it is not supported by the evidence, for it is manifest that these representations, if made, form no part of the case made by the bill. It will be observed that the bill ties the cause for complaint to a threatened violation by the defendant of the restrictions above set out. The allegation of the bill that the tract was intended and was held out by the company to be used only for residential purposes is pleaded solely by way of inducement. The pleadings and proofs clearly show that the limitation upon the use of the lots for residential purposes was not to be greater than these restrictions would afford. That this was the understanding of the complainants at the time they purchased is clear, for it appears that they were apprised in detail of the terms of the restrictions and bound themselves in the use of their lots only to the extent of the covenant contained in their respective deeds.
2. I shall assume, without deciding, that the covenant, of which the one set out in the bill is the model, was adopted by the Metuchen Building Company as a part of a locality scheme (although I must say that, in a situation so chaotic as we find here, the feasibility of a community plan or scheme is inconceivable), and that the restrictions inure to the advantage of and may be enforced by the grantees of the company against each other upon that theory (Morrow v. Hasselman, 69 N.J.Eq. 612, 61 Atl. 369; Bowen v. Smith, 76 N.J.Eq. 456, 74 Atl. 675; Elliston v. Reacher, 2 Chan. 1908, p. 374), or "upon the principle of preventing a party, having knowledge of the just rights of another, from defeating such rights" (Brewer v. Marshall, 19 N.J.Eq. 537, 97 Am. Dec. 679; Hayes v. Waverly & P. R. R. Co., 51 N.J.Eq. 345, 27 Atl. 648; Kirkpatrick v. Peshine, 21 N.J.Eq. 206), and shall also assume that the defendant Barr was cognizant of the restrictions, and that they are enforceable against him. This, then, brings us to the question whether the defendant's proposed erection of a public garage on lot No. 5 will violate the covenant.
3. The first paragraph interdicts the erection of any "building" costing less than $3,000. The complainants contend that the word "building" means dwelling house, and that it should be so construed. This is inadmissible. Definition refutes the argument. It cannot be gathered from the context of the covenant that the parties intended the word "building" to imply a certain kind of building. To interpret the word "building" to mean dwelling would prevent the erection of a church, a theater, a municipal building, a hotel or private clubhouse, which without doubt was not within the contemplation of the parties. I cannot read into the covenant a restriction which the parties did not agree to. It is a well-established principle that covenants which restrict another in the use to which he may put his lands are strictly construed, and, unless the right to restrict is made manifest and clear in the covenant, a court of equity will not aid, by its process of injunction, one owner to restrict another in the otherwise lawful use to which he may put his lands. Howland v. Andrus, 81 N.J.Eq. 175, 86 Atl. 391; Underwood v. Herman & Co., 89 Atl. 21 Court of Appeals, November term, 1913).
4. The second paragraph of the covenant proscribes the use of the lots for purposes therein specifically mentioned "or any other nuisance whatsoever." The erection of a public garage eo nominie is not prohibited, but it is insisted that to permit one to be erected and operated would create a nuisance. To read this into the clause inhibiting nuisances necessarily requires a finding that a public garage is a nuisance per se. This it surely is not. It is a place for the housing of automobiles. The business is a lawful one, and the presumption is that it will be lawfully carried on. In such circumstances a court of equity will not interfere. If, in the prosecution of the business, a nuisance is created, it may interpose. This court refused to restrain as a nuisance the erection of a blacksmith shop (Butler v. Rogers, 9 N.J.Eq. 487), a factory for manufacturing agricultural implements (Wolcott v. Melick, 11 N.J.Eq. 204, 66 Am. Dec. 790), a pottery (Ross v. Butler, 19 N.J.Eq. 294, 97 Am. Dec. 654), a gas works (Cleveland v. Citizens' Gas Light Co., 20 N.J.Eq. 201), a slaughterhouse (Attorney General v. Steward & Taylor, 20 N.J.Eq. 415), a sawmill (Duncan v. Hayes & Greenwood, 22 N.J.Eq. 25), a pesthouse (Board of Health v. Trenton, 63 Atl. 897). Each of these cases exhibits a situation of impending harm of far greater magnitude than that shown here, and in all of them the court refused to interfere with the building, although in some instances it enjoined a particular method of carrying on the business which threatened or proved to be injurious to others and in this respect a nuisance. In O'Hara v. Nelson, 63 Atl. 836, 842, Vice Chancellor Garrison restrained the storage or use of gasoline within a garage, but he did not condemn the garage as a nuisance. While some of the cases came up on motion for preliminary injunction, and others were disposed of on final hearing, the same principle predominated that equity will not interfere by injunction to restrain the erection of a building unless the building is so intimately and essentially a part of an unlawful business as to make it apparent that the combination of building and business spells nuisance. As was said in Cleveland v. Citizens' Gas Light Co., supra, when it is not made to appear that the business for which the building is intended cannot possibly be carried on without becoming a nuisance, this court will deny the injunction. These authorities are illustrative of what may constitute nuisances within the meaning of the covenant sought to be enforced and are absolutely dispositive of this phase of the case. It is pertinent to add that the doctrine already alluded to, which requires in cases of this kind that there must be no ambiguity or uncertainty in the covenant, is invocable and destructive of the claim set up by the complainants.
5. The evidence submitted, showing that the covenant in the deeds of one or more purchasers of lots interdicted public garages, and that the Metuchen Building Company refused to sell two of the defendant's lots to prior applicants unless they were restricted as to public garages, tending to support the complainants' contention that the company's policy was to limit the use of its lots to residential purposes, and which I have already pointed out is not within the scope of the bill, is, in the view I have taken of the case, wholly immaterial.
The bill will be dismissed, with costs.