Submitted June 4, 1958.
Decided June 20, 1958.
1. The enforcement of a restrictive covenant running with the land may properly be denied because of the conduct of the parties.
2. Where an owner of land subdivided the tract into lots and conveyed each of them subject to the restriction that "no building shall be erected upon any one lot other than a one-family dwelling or two-family dwelling" such restrictive covenant was held to be a reasonable one running with the land which was valid and binding on the respective purchasers of such lots.
3. However, the denial of a mandatory injunction, brought by the owners and their predecessors in title to some of the lots, to require the defendant to remove a building erected on his lot in alleged violation of such restriction was proper where the plaintiffs failed to make any complaint thereof for more than two years after the defendant had completed construction of the building at a substantial expense and the relative hardship in granting relief to the plaintiff was found to be disproportionate to the benefit secured thereby.
4. In mandatory injunctive proceedings the issue of laches is mainly a question of fact for the determination of the Trial Court.
BILL IN EQUITY, praying that a mandatory injunction issue ordering the defendant to remove a building allegedly erected in violation of a restrictive covenant running with the land and for assessment of damages. Trial by the Court (Wheeler, C.J.) who denied the relief prayed for, and defendant's exceptions to the decree were reserved and transferred.
The lots owned by the parties were acquired from a common grantor who subdivided the area into lots 50 x 100 feet. Each lot contained certain restrictions including the following: "that no building shall be erected upon any one lot other than a one-family dwelling or two-family dwelling . . . ." The defendant's land consisted of a rectangular lot and a half which was 75 x 100 feet.
The pertinent part of the Court's findings and rulings is as follows:
"In 1950 Coulouras constructed a two-family dwelling on the southerly side of said property, which is presently located there. In September of 1952, construction was started on a small one-family cottage, situated easterly of the two-family dwelling, facing the ocean. It was completed in November of that year, at a total cost of $8,873.90.
"During the construction of the one-family cottage the petitioners and their predecessors in title were about their premises from time to time and observed, or had opportunity to observe, the construction of the small unit easterly of the two-family dwelling, but made no objection at that time. The first notice to the petitionee of any objections was on September 6th, 1955, when this bill in equity was filed. The chief complaint made is alleged obstruction of the Petitioner's view of sand and sea.
"The Court finds that the petitioners have failed to show substantial injury to their respective properties resulting from said construction.
"The Court further finds that the petitionee constructed this building in good faith under a bona fide claim of right.
"It seems doubtful, also, if said restrictions were intended to apply to a parcel of land seventy-five by one hundred feet, as regards the number of dwellings to be constructed thereon. However, the petitioners elected to wait until the construction was completed, at a cost of $8,873.90, before making any complaint, and the Court finds that they and their predecessors in title have been guilty of laches. The harm done by granting the relief prayed for would be disproportionate to the benefit secured thereby."
Sleeper Mullavey for the plaintiffs, furnished no brief.
Perkins Holland and Robert B. Donovan for the defendant.
The principal issue is whether the plaintiffs in the circumstances of this case are precluded by laches from enforcing the violation of a restrictive covenant running with the land by the defendant. The residential restriction, which limited the owners to the erection of a single dwelling for either one or two families, was a reasonable one which was valid and binding on the parties to this litigation. Johnson v. Shaw, 101 N.H. 182; Winnipesaukee c. Ass'n v. Gordon, 63 N.H. 505. See Nashua Hospital v. Gage, 85 N.H. 335. For the purposes of this case it may be assumed, without deciding the question, that the defendant violated the residential restriction of the common grantor, Sun Valley Beach, Inc., by erecting two dwellings on a lot and a half. See Sun Valley c. Co. v. Watts, 98 N.H. 428, 433.
It has been long recognized that the enforcement of a restrictive covenant by injunctive relief may be denied because of the conduct of the parties. 3 Williston, Contracts (Rev. ed.) s. 740; Clark, Covenants and Interests Running with Land (2d ed. 1947) 184; Wischmeyer v. Finch, 231 Ind. 282. One defense to the enforcement of restrictive covenants is laches but mere lapse of time alone is not enough. 5 Powell, Real Property, s. 683, p. 213 (1956). "Delay alone is seldom the sole justification for refusing an injunction. But, in a case where other considerations render doubtful the wisdom of granting it, the failure of the one applying for the injunction to act promptly is a factor adverse to granting it." Restatement, Property, s. 562, comment b. In this case the Court found that the plaintiffs waited until the construction was completed at substantial cost before making any complaint.
Neither law nor equity nor science has been able to develop any mechanical gauge that will automatically tell litigants or the court the number of months or years that are required to constitute reasonable promptness in bringing a suit to avoid the defense of laches. "The operative facts establishing laches are different from case to case." 5 Powell, Real Property (1956) supra; Stewart v. Finkelstone, 206 Mass. 28. Since each case has to be considered in the totality of the facts and circumstances surrounding it (anno. 12 A.L.R. (2d) 394), the defense of laches has been regarded as "mainly a question of fact" for the Trial Judge. Cote v. Cote, 94 N.H. 372, 373. This proposition was succinctly stated in Hould v. Company, 83 N.H. 474, 486: "The issue as to laches is primarily one of fact." See also, Wellington v. Wellington, 88 N.H. 482.
In the present case the plaintiffs waited for more than two years after the defendant constructed his one-family dwelling before instituting their suit for injunctive relief. While this did not constitute laches as a matter of law (Watters v. Blatt, 249 Mass. 340), it was evidence upon which the Trial Court could make a sustainable finding of laches in this case. See Duhamel v. Prescott, 101 N.H. 108, 111. Delay "for an unreasonable length of time in bringing the suit after knowledge of the breach may be the basis for the equitable defense of laches, particularly where a mandatory injunction is being sought." II American Law of Property, s. 9.38, p. 443. This is particularly so in view of the further finding that the relative hardship in granting relief to the plaintiffs was disproportionate to the benefit secured thereby. 5 Powell, Real Property, s. 685, p. 223. "Thus a combination of laches and disproportion between harm and benefit may have the effect of causing the denial of an injunction when neither alone would have caused such denial." Restatement, Property, s. 563, comment c.
WHEELER, J., took no part in the decision; the others concurred.