Deeves v. Constable

Hatch, J.: Restrictive covenants of the character now under consideration are to be construed most strongly against the covenant, such con [356] struction to be in accordance with the intent of the parties as expressed therein, coupled with the surrounding circumstances as nearly as the same can be ascertained. (Clark v. Jammes, 87 Hun, 215; White v. Collins Bldg. & Const. Co., 82 App. Div. 1; Sonn v. Heilberg, 38 id. 515.) We must, have clearly in mind, in construing the covenant now under consideration, the purpose and use to which the land and building were devoted and the circumstances surrounding such use at the time when the covenant was made, as well as to consider the terms of the covenant itself. The covenant was imposed upon the land in 1853. At that time all of the property on the northerly side of Seventeenth street and fronting thereon between Broadway and Fourth avenue was used for residential purposes so far as buildings had been constructed upon the land. A considerable portion of it at that' time was vacant property. The contemplated use of the. land was evidently for residential purposes, business not having yet invaded that part of the city. Having the purpose of use in mind, the covenant provides, first, that no nuisance should be erected, or manufactory or business established commonly considered a nuisance ; second, that no stable should be erected at a distance less than twenty-five feet from the dwelling house to which the covenant applied; third, which is' here'the important provision, not to erect upon the premises “any other than a first-class dwelling house; that the front of such house or any. part thereof, straight, semi-circular, oval or otherwise, shall hot project or begin to project beyond the line or front of said dwelling house of the said party of the first part 'before mentioned, at a distance less than ten feet easterly or. southeasterly from the easterly or southeasterly line of said dwelling house of the said' party of the first part, and that such projection shall not extend more than 18 (eighteen) inches beyond the front of the dwelling house of the said party of the first part within twenty feet of said house of said party of the first part.” And lastly, that the depth of any excava-tion which might be made should not be below 'the wall of the house of the party of the first part. Each and every of these covenants has relation to the protection .of the dwelling house occupied by the grantor in the deed. The language used is not apt for any other purpose; for that purpose the words of the covenant are precise and appropriate, so that taking into consideration the fact, that [357] this was a residential neighborhood, that the grantor had erected a dwelling house upon the premises, and that he desired to protect the use thereof from all obnoxious surroundings, and made precise stipulations to that end in the covenant itself, it follows as an irresistible conclusion that the purpose and object which the grantor had in mind was to protect himself in the enjoyment of his property for purposes of a residence free of any disagreeable environment. It is evident, therefore, that when the conditions were radically and entirely changed, and the property ceased to be used for residential purposes and the whole street was devoted exclusively to business use, the reason for the existence of the covenant failed, as no residence remains to be protected, and to continue to restrict the use. of the land confers no benefit upon the grantor or his successors in the covenant. As no benefit is to be derived to the dwelling house to which the covenants apply, equity forbids that the restriction should still be enforced when its only effect is to operate disadvantageous^ to the present owners of the land, to whom the covenants apply. The doctrine announced in Trustees of Columbia College v. Thacher (87 N. Y. 311) finds precise application to such case. In Holt v. Fleischman (75 App. Div. 593) this court sustained a covenant which was for the benefit of a dwelling house, as such, and noted the distinction between that case and the doctrine announced in Trustees of Columbia College v. Thacher (supra). Therein, however, the dwelling was still occupied for purposes of a residence, and the enforcement of the covenant was essential to a complete enjoyment of it as such. Here, however, by reason of changed conditions, no benefit can arise in the enjoyment of this property by the enforcement of the covenant. The same doctrine is announced in Lattimer v. Livermore (72 N. Y. 174). If there were no other reasons therefor, we should regard the radical change and the cesser of use of the property for residential purposes as furnishing a sufficient ground to deny an enforcement of the covenant. In addition to this, we are also of opinion that when the successors of the grantor in the deed tore down the dwelling and erected a business block thereon, which extended over the open space in front of the dwelling house to the building line upon the northerly side of Seventeenth street, it amounted to an extinguishment of whatever easement had theretofore existed upon the adjoin [358] ing property. Such act was inconsistent with the terms of the restrictive covenant, its language and intention. It was a recognition of changed conditions, which had converted this street from a residential street and devoted it to business use. The building, which was erected upon this site, was itself devoted to business and was a conclusive act, and conclusively evidenced an intention upon the part of the successors in the grant to disregard and nullify the covenants which had been imposed for the enjoyment of the property as a dwelling. The authorities which hold that such, acts are inconsistent with the continued existence of the covenant áre numerous. (Snell v. Levitt, 110 N. Y. 595 ; Heartt v. Kruger, 121; id. 386; Dyer v. Sanford, 9 Metc. 395; (Canny v. Andrews, 123 Mass. 155.) Nor can the covenant be held to continue and remain operative as an easement for light and air over the restricted space. The Everett House was built in 1856. When it was constructed no.space was left between the Moffat dwelling and its westerly wall, nor were there any side lights in the Moffat dwelling; or if so-, their obstruction by the. wall of the Everett House was complete and was a'eq'uiesced in by the owner of the dwelling. The projection of the dwelling house beyond the front of the- Everett House was not sufficient to permit of any windows on its easterly side; nor bad it any upon the westerly side, at that time. All' of the light which this part of the dwelling" received came from the front. The only possible benefit it could receive in the way of light and air was the opening in front over the uninclósed space. It is evident that it did not require the restricted space as essential for light or air upon the easterly side of the dwelling. The covenant in the deed contains no reservation of any' eásement of light and air, and the circumstances did not permit of any benefit to be derived therefrom to the dwelling so long as it continued to remain upon the site ■ where it then stood or to any part of it except the front.' When the dwelling was torn down and the business block constructed, it occupied the vacant space in front of nine and one-half feet, and by constructing upon the building line it received for its front the same light which • it had received when it stood farther back. Such removal carried with it no right to put windows in the side walls, and thereby acquire an easement of light and air over the restricted space for the benefit of its side. The restrictive covenant [359] does not provide for it and no conditions are shown to exist which require that it should be applied to it. Easements of light and air are protected only where they are reserved and remain beneficial to the property in whose favor they exist. (Zipp v. Barker, 40 App. Div. 1; affd. on appeal, 166 N. Y. 621.) For these reasons we conclude that the restrictive covenants have ceased to apply to the plot in controversy, and for this reason judgment should pass for the plaintiffs upon the agreed case, with costs. Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred. Judgment ordered for plaintiffs, with costs.