Gatzmer v. St. Vincent School Society

Pee Cueiam, We are of opinion that the court below did not err in dismissing the complainants’ bill. The case is not so clear as to justify a mandatory injunction. It is, at least, doubtful, whether the building itself is a violation of the restriction. The improvements complained of consist of a boat house, club house, and building alleged to be used as a carpenter shop. The latter, however, appears to have been used as a carpenter shop merely for repairing the boats belonging to the club, and, occasionally, the construction of a new one. The club house in question is certainly not a dwelling-house, but it is not clear that it does not come within the alternative phrase, a “ genteel cottage.” We also agree with the learned judge below that there has been considerable delay in making this application. He says, in his opinion: “ It appears from the evidence that the club house is used as club houses ordinarily are, and there is no satisfactory proof of any unusual attendance at the place, or irregular conduct on the part of those who so attend. The evidence also shows, that the club house was completed in September, 1887, and that the thirty days’ notice, under the original covenant, was first given by the complainants in January, 1889. Since the giving of this notice, and since the fil [319] ing of the bill, the only addition to this house has been a number of small shelters, designed to protect from the weather the boats used by the members of the club. There is attached to the main club house also a room where boats are occasionally repaired, and where, perhaps, some few have been built, but the evidence does not show that this portion of the house was built any later than the rest, namely, September, 1887.” A mandatory injunction will not be issued where complainants’ rights are not clear: Railroad Co. v. Stock Yard and T. Co., 45 N. J. Eq. 50; Mayer’s Ap., 73 Pa. 164. The affirmance of this decree does not preclude the complainants from their remedy at law. The decree is affirmed, and the appeal dismissed at the costs of the appellants.