Thompson v. Diller

Putnam, J.: The facts show an elaborated design for the erection of buildings in a select neighborhood by what the English courts call a “ building scheme,” in which the lotted lands are laid out for private dwellings, and reserved from disturbance by inroads of business. Restrictive covenants to that end are familiar. They exclude buildings other than private residences; they determine theff character by providing for a minimum cost, with a setback restriction to keep the houses from being too near the street. (Silberman v. Uhrlaub, 116 App. Div. 869.) Besides protecting from the encroachment of trade, and guarding against cheaper houses, provision is made for only one dwelling on a specified lot, with other efforts for uniformity of general effect. The objects are said to be for “light, air, ornamentation, or the exclusion óf occupations which would render the entire property unsuitable for the purposes to which it could be most advantageously devoted. ” (Trustees of Columbia College v. Lynch, 70 N. Y. 440, 446.) Such covenants are valid, and enforced by equity against subsequent purchasers who buy with notice thereof. As was said by Lord Cairns : “All that a court of equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant.” (Doherty v. Allman, L. R. [1878] 3 App. Cas. 709, 720.) No English judicial decision or dictum has attempted to define the extent to which restrictions affecting the user of land can be imposed by covenants. (Jenks’ Dig. Civil Law, book III, p. 807, note [1913].) — 102 — If it appears that such restrictions were entered into for the common advantage, the right of enforcement passes to successive lot owners. Each proprietor is thenceforward interested in having his neighbor’s lots, and the buildings thereon, used in such away as to “ preserve the general uniformity and respectability of the row.” (Whatman v. Gibson, 9 Sim. 196.) These advantages are not only to keep noxious trades out of a new residence quarter, but are to promote the amenities of neighborhood building, so that the pleasant natural effect preserved by such a covenant is sometimes called an “amenity.” (Trustees of Columbia College v. Lynch, supra; Coudert v. Sayre, 46 N. J. Eq. 386.) Restrictions for beauty have not been limited to the buildings alone. Thus we have an example of lots sold, with covenants to leave open and unbuilt upon the portions of the restricted lots that are colored blue upon an accompanying plan. Such covenants provide for uniformity in mode of building, so that “the enjoyment which springs from regularity in a series of dwellings may be preserved.” (Peek v. Matthews, L. R. [1867] 3 Eq. 515.) The present north-wall covenant was obviously for uniformity, as well as perhaps, by means of these open spaces, to secure better protection against the spread of fire. It might be argued, however, that it does not prevent a builder from stretching his house to cover fifty-five feet of his lot. Such an abnormal departure from usage is not to he anticipated, and its bare possibility cannot entitle a builder to ignore the northerly line, and start his house on the southern half of the restricted lot. The fact that a building of extraordinary width might defeat the purpose of the restriction, will not authorize a house thirty feet wide to be set twenty-two feet from the north line and eight feet from the south boundary. The restriction aims to regulate the open spacing between these buildings, the value and enjoyment whereof depend on a size reasonably appropriate to its site. The natural effect of these restrictions is to project the piazzas along the southern sides of these dwellings; the house as extended and widened by these additions leaves but a moderate margin, perhaps little more than a driveway along the southern part of the lot. Still, by starting a building five feet from the north line, there may be left at the southern portion — 103 — a space for grass plots or gardens much more effective by being arranged at the south side of the house, instead of the broken effect of such spaces on both sides. The benefits thereby are at least coextensive with the burden of this restriction upon the freedom of building. This covenant providing that the main north wall shall stand five feet from the edge of the lot, was evidently framed so as to align the houses in an open harmonious setting. To construe it to read “not nearer than five feet,” would miss its spirit and purpose, as it would violate its letter. Such a construction, making elastic the provision for the north building line, would let a purchaser build anywhere within the remaining fifty-five feet breadth of the lot, even up against its very south boundary. The different and varying covenants in certain special parcels conveyed in Mr. Alvord’s deed are not overlooked. But such parcels are along the outer edges of his park scheme, where there was no land alongside to be protected, or the localities were shown to be otherwise exceptional by the superior size of the lots, or the greater width of the road on which they front. These exceptions in no wise detract from the uniformity of the design, which is impartially carried out. Ho power of dispensation was reserved or was attempted. To no favored lotowner was immunity promised for any departures from his covenant, as in Beals v. Case (138 Mass. 138). Such a covenant stands not only on its continued use in a .general series of conveyances, repeated as to the lots abutting on the six streets running north and south in this development. The covenant has now become executed and embodied by buildings standing in substantial accord with its requirements. A plan thus impressed upon the property, which the parties have themselves made effective according to its literal terms, is to be enforced in the very words used, if free from ambiguity. As Church, Ch. J., said: “The covenant was lawful; the parties had a right to make it, and we have no power to change or alter it.” (Atlantic Dock Co. v. Libby, 45 N. Y. 499, 504.) In furtherance of the plan of maintaining a general care of all the lot fronts, even after they should be held in severalty, Mr. Alvord required each buyer to contract to pay a yearly sum for cleaning crosswalks and sidewalks, and for the upkeep of — 104 — the lawns and shrubbery beds between the sidewalks and curb. All of which indicates an improvement plan made for an entire community of lotowners as a general regulation, or as “a law perfectly well understood, and one calculated and intended to add to the security of the lessees, and consequently to increase the price of the houses.” (Spicer v. Martin, L. R. 14 App. Cas. 12, 25. See, also, De Mattos v. Gibson, 4 De Gex & J. 276.) Defendants, however, trace their title through Mr. W. S. Liptrott, who bought from the Chelsea Eealty Company June 15, 1905. This conveyance substantially copied the Alvord restrictions except that it provided that the main northerly wall, “exclusive of bay windows, shall stand at least five (5) feet from the northerly line of said premises.” After these other covenants was the recital: “Subject also to covenants contained in deed from Dean Alvord to the party of the first part.” The same forms were repeated in the conveyance from Mr. Liptrott to defendants, which also contained a recital referring to the covenants in the Alvord deed. In 1905, when Mr. Alvord conveyed his unsold lots to the Chelsea Eealty Company, his building scheme with these restrictions had been in active operation over five years. By including these restrictions in his conveyance of all the unsold lots he made it manifest that such restrictions were for the common advantage, and did not create and continue a mere personal obligation. (Brouwer v. Jones, 23 Barb. 153.) As the benefit of these covenants is part of the security enjoyed by all past and future lotowners, neither Mr. Alvord himself, nor the Chelsea Eealty Company as his successor in title, could thereafter release, annul or modify such restrictions, which as part of the values of the restricted lots are not to be taken away while the original scheme is preserved, and the neighborhood keeps its residential character. (Western v. MacDermot, L. R. 1 Eq. 499; Spicer v. Martin, supra ; Coudert v. Sayre, supra.) This conveyance to Mr. Liptrott shows no intent to do away with the original Alvord restrictions. The more natural inference is that the words “ at least ” crept in by inadvertence. The true purpose appears by the express reincorporation of the — 105 — Alvord covenants. But the question of the Chelsea Realty Company’s intent is unimportant, in view of its lack of power and the controlling effect of the original restrictions appearing of record. Even had the Chelsea Realty Company given a general warranty deed, with no restriction whatever, the purchaser’s user would still be subject to the original Alvord restrictions, as contained in the conveyance forming part of his chain of title. (Nottingham Patent Brick & Tile Co. v. Butler, L. R. 16 Q. B. Div. 778; Clements v. Welles, L. R. 1 Eq. 200; Whatman v. Gibson, supra; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35.) We are reminded that a plaintiff who lies by and suffers defendant to make large outlays cannot have injunctive relief. But one who has broken such a covenant has the burden of proving laches. (Elliston v. Reacher, L. R. [1908] 2 Ch. Div. 374, 392.) The defendants’ building plans were filed October twenty-fourth, excavation began November eighteenth, and a notice claiming breach of the covenant from counsel for the Prospect Park South Association followed on December tenth. The foundations, with the first-floor beams, had then been laid. To change the plans and reset the foundation will cost approximately $2,000. Considering that the neighboring residents seldom go to the building department to inspect plans, and that the staked-out lines for excavation do not necessarily show the outer inclosing walls, it cannot be held that the rights of plaintiff, a non-resident of this State, were lost by this delay of twenty-two days after excavation had been started. (Joyce Inj. § 488; Adams v. Howell, 58 Misc. Rep. 435.) It is also urged that the court should now hold its hand because these restrictions are to cease in 1925. Mr. Alvord imposed a moderate period for the life of his restrictions. Doubtless he thought that by 1925 the land would be built over and the advantages of his system made apparent, so that the duty, first compulsory, would then require no legal sanction. Such a time limit, however, where the original scheme "has been preserved (and where the residential character of the surroundings has not declined, as in Roth v. Jung [79 App. Div. 1], and has not been invaded by elevated rail — 106 — roads as at upper Sixth avenue, Manhattan [Trustees of Columbia College v. Thacher, 87 N. Y. 311]), should not invalidate or weaken the covenant, which has still eleven years to run. Indeed, the fact that since imposing the restriction so many lots have been built upon, in reliance that it shall last till 1925, is a strong reason why the court should not take away this protection before the date when it ceases by its terms. Besides the question of the north wall, plaintiff objects to defendants’ house having an end toward the street and its main entrance on the north side. She urges that the restrictions clearly point to a house with front entrance directly on the street. The covenants relied on are as to height of the finished grade “at the front line of the house,” without terrace or step between the street sidewalk “ and the front line or lines of house; ” and the clause that no fence or hedge shall be erected “ nearer the street line or lines than the front wall or walls of the house.” These covenants certainly restrict the grading and the front lot surface between the house and the street. They may conduce to the effect of a broader street vista, unbroken by projecting fences or banks of varying heights. But it is not clear that a house which otherwise conformed to the site requirements may not legally have a side entrance. An adequate approach and side entrance along this five-foot strip at the northern side may present serious architectural problems; indeed difficulties such as'perhaps may require modification of the present design. Where, however, such an entrance restriction is not express, and does not arise by clear implication, the court cannot read into a conveyance such an additional limitation on the right to build going beyond these express restrictions so comprehensively elaborated. Under this submission, the judgment should enjoin and restrain the defendants, in the erection of their proposed dwelling house on Argyle road,- from departing from and violating the restriction that the main north wall of their dwelling house, exclusive of bays, shall stand five feet from the north line of their plot, being the parcel numbered thirteenth in the deed from Dean Alvord to the Chelsea Realty Company, dated — 107 — June 1, 1905, and recorded in the Kings county register’s office June 14, 1905, in section 16, liber 40 of Conveyances, page 524, which judgment, pursuant to the stipulation of the parties, is without costs. Jenks, P. J., Thomas, Rich and Stapleton, JJ., concurred. Judgment for plaintiff, without costs, in accordance with opinion.