Rowland v. . Miller

Earl, J. The main contention of the parties is over the meaning and force of the restriction agreement. The claim of the appellant that it simply restrains nuisances cannot be sustained, and hence the numerous authorities cited by his counsel on the argument before us, have little or no application. If the agreement was intended simply to restrain any trade or business Avhich was per se a nuisance, or Avhich was carried on in such a way as to make it a nuisance, then it Avas Avholly unnecessary. The laAv Avill always, upon the application of a party aggrieved, restrain and abate a private nuisance. This case is not gOArerned by the general law as to nuisances, but by the force and effect "of the covenants contained in the agreement. When the agreement Avas made, the parties thereto, desiring to improve, protect and benefit their lots, and consulting their respective interests, absolutely prohibited the carrying on of certain kinds of business specified upon the lots. They determined for themselves that those kinds of business were undesirable in the vicinity of residences, and covenants restraining *102 them can be enforced without any proof whatever that they are “injurious or offensive.” A person owning a body of land and selling a portion thereof, may, for the benefit of his remaining land, impose any restrictions, not against public policy, upon the land granted he sees tit, and-a court of equity will generally enforce them. (Trustees of Columbia College v. Lynch, 70 N. Y. 440; Same, v. Thacher, 87 id. 311; Hodge v. Sloan, 107 id. 244.) The business carried on by the Taylor Company is not among those kinds particularly specified in the agreement. But the claim of the plaintiff is that it is prohibited by the general clause in the agreement as “ injurious or offensive to the neighboring inhabitants.” This clause enlarges the scope of the agreement. It is a too narrow construction to hold that it prohibits only trades or kinds of business which are nuisances per se, for reasons already given and for the further reason that nearly if not quite all the trades and business specially named are not such nuisances. Any kind of business may become a nuisance by the manner in which it is carried on, or from its location, and a business may be offensive to neighboring inhabitants and yet fall far short of being a legal nuisance, which a court of equity will abate as such. This clause in the agreement must have a reasonable construction. We cannot suppose that the parties had in mind any business which might be offensive to a person of a super-sensitive organization, or to one of a peculiar and abnormal temperament, or to the small class of persons who are generally annoyed by sights, sounds and objects not. offensive to other people. They undoubtedly had in mind ordinary, normal people, and meant to prohibit trades and business which would be offensive to people generally, and would thus render the neighborhood to such people undesirable as a place of residence. It cannot be doubted that the business of the Taylor Company was, within this definition, offensive to the neighboring-residents. People of ordinary sensibilities would not willingly live next to a lot upon which such a business is carried on. *103 An ordinary person desiring to rent such a house as plaintiff's would not take her house if he could get one just like it at the same rent at some other suitable and convenient place. Indeed, her house would be shunned by people generally who could afford to live in such an expensive house. The courts can take judicial notice of the offensive character of such a business. Judges must be supposed to be aequainted with the ordinary sentiments, feelings and sensibilities of the people among whom they live, and hence in this case the learned judge, after the character of the business carried on by the Taylor Company had been proved, could have found, as matter of law, that it was in violation of the restriction agreement, without any further proof. It was, therefore, unnecessary for the plaintiff upon the trial to call witnesses from the neighborhood to give their opinions that this business was injurious and offensive. Even if such opinions were erroneously received, they were unnecessary and harmless, as upon the undisputed evidence as to the character of the business carried on the legal conclusion of the trial judge must have been the same. But it is contended that the restriction agreement ought not in this case to be enforced, because most of the lots in the block between 42d and 43d streets and Madison avenue and Vanderbilt avenue are no longer occupied for residences, and are devoted to business purposes, and the counsel for the appellant cites as an authority on this point our decision in the case of The Trustees of Columbia College v. Thacker. The principles of that case are not applicable to the facts of this. There it appeared that the contract which the plaintiff sought to enforce was no longer of any value to it, and that its enforcement would result in great damage to the defendant, without any benefit to anyone. Here the plaintiff has the right to occupy her house as a residence, and in such occupation to have the protection of the restriction agreement. She has never violated the agreement herself, or consented to or authorized or encouraged its violation by others. In order to have the benefit of the agreement, she is not obliged to sue all its *104 violators at once’ She may proceed against them seriatim, or she may take no notice of the violations of the agreement by business carried on remotely from her residence, and enforce it, against a business specially offensive to her by its proximity. This is not a case where the defendants can ask for immunity in an equitable forum, because others are in a greater or less degree also violators of the agreement. The plaintiff has done nothing and omitted nothing which should authorize the occupant of an adjoining lot, in violation of the agreement, to make her residence uncomfortable and undesirable. Generally, whether an equity court will refuse to restrain the violation of such an agreement, and leave the parties to their legal remedies on account of the changed conditions affecting the premises to which the agreement relates, rests in the discretion of that court, and such discretion will not be reviewed upon appeal here. The question to be determined in the, exercise of such discretion depends largely upon the facts, and mainly whether the enforcement of the agreement would greatly harm the defendant without any substantial benefit to the plaintiff, so as to make the enforcement inequitable. We cannot say, reviewing all the evidence in this case, that it would be inequitable for the plaintiff to enforce the agreement. The appellant claims that the judgment is too broad in its restraints. But we think all his lights are fully protected by the sixth clause of the judgment, and the subsequent action of the court under that clause upon the application of the Taylor Company. The matters to which we have thus given attention cover the whole ground of the appeal, and our conclusion is, that the judgment must be affirmed, with costs. All concur, except Gray, J., not voting. Judgment affirmed.