Page v. Murray

The Chancellor. In disposing of ’this ease I will not pass upon questions suggested, whether the covenant contained in the agreement between the complainant and Gerbert and Ward runs with the land •and extends to subsequent purchasers with notice of it, whether the defendant had constructive notice of that covenant, or sufficient actual notice of its existence to put him upon inquiry as to its terms, or what is the proper construction of the covenant in the deed from Gerbert and Ward to Howell, of which the defendants admit knowledge. I will assume that each of these questions may be resolved in favor of the complainant, and then proceed to the consideration of the questions of equity which the case presents. Under such assumption the complainant has two remedies: an action at law for breach of the covenant, and a suit in equity to restrain an erection in violation of the covenant. There can be little doubt that in a case of this character the mode of relief by injunction, which equity affords, is more complete and satisfactory than repeated actions at law, which may be [330] necessitated by continuing breaches of the covenant. The complainant has preferred resort to that relief, and, as it is specific performance, a discretionary relief, the question to be, now determined is, whether it shall be afforded to him or whether he-shall be left to his remedy at law. The evident purpose of the covenant was to protect the locality to which it applied from businesses that were likely to create a nuisance and buildings of the cheapest grade, and thereby bring-to it a better class of buildings and ensure its occupation by quiet, orderly and well-to-do people. "With this intention the-covenant arbitrarily names a price that all buildings, to be erected, must cost. Immediately beyond the northerly limits of the land which is subject to the covenant, the character of "Valley street has been determined by the erection'óf more than twenty houses that have-cost less than $3,000 apiece. The cost of the majority of them has ranged from $700 to $2,500 each. They extend to the very boundary of the land included within the covenant, and establish that more expensive houses must ultimately be unmarketable and unprofitable in that street. Together with this circumstance is-the fact that the restrictive covenant, in question, will soon expire, and that enforcement of obedience to the requirements of it now will practically result in depriving the owners of the affected land of the use of their land as long as the covenant continues in force. When the covenant ceases to restrict the use of the land, the street Avill undoubtedly be built up with houses similar to that which the defendant Murray has erected. Murray’s house is three hundred and sixty feet from the most northerly boundary of the complainant’s land, and a m.uch greater distance from that part of his property which is improved by habitations superior to it. So far, indeed, is it from the defendant’s residence and other residences of the same class, that it was well-nigh completed before the complainant either saw it or heard of it. In this situation it manifestly would be inequitable to deprive the defendant of the privilege of conforming the building upon his property to the character of the buildings surrounding it, and [331] thus use it to his greater advantage, especially where it is not-perceived that it will be in any respect detrimental to the complainant. It is true -that, to some- extent, the future character of Valley street north of Murray’s land was foreshadowed at •the time of the agreement between the complainant and Gerbert and Ward, but it was not then so pronounced as at present, and -then the agreement had twenty years to run, a time apparently sufficient to ensure a change in that character over the portion of' the land affected by the agreement; but now, after seventeen-years have expired, and no buildings of the valué contemplated, have been built on the land affected by the agreement, while,, upon adjacent land, cheaper buildings havé multiplied, it appears-■to be too late for the covenant to: secure' the desired end. I think that these circumstances present a case ’which,'in principle, is not unlike the case of The Trustees of Columbia College v. Thacker, 87 N. Y. 311, where the court of appeals' of New York held that equity would refuse to enforce a covenant, not to devote certain property to business purposes where there had been such a change-in the character of the neighborhood by the building of an elevated railroad and the increase of business houses, as’ to defeat the-object and purpose of the agreement, and render it'inequitable to-•deprive such owner of the privilege of using his property as its-surroundings required. But there is another circumstance in this casé which aids the-defendants. The complainant took from Gerbert and Ward a conveyance of a part of- the affected lands which did not contain a restrictive covenant, as his agreement with them required, upon which he has erected a building that, in a questionable manner-only, complies with the agreement he seeks to enforce. Unless the greenhouse and adjoining dwelling are taken as one, the cost of their erection will not be as much as $3,000. They are built upon separate foundations, have separate entrances, and are used' for different purposes. They can be regarded as one building,, only because they adjoin and open into each other. Even when they are taken together, they present an obstacle which is quite-as detrimental to the improvement of the neighborhood, in. accordance with the intent and spirit of the covenant, as the de~ [332] fend ant Murray’s house. The building is three hundred and -sixty feet south of Murray’s house and between it and the complainant’s house and other similarly expensive establishments, forming, as it were, a long, low barrier between the two classes of residences. I cannot escape the conclusion that its effect upon the land north of it, which is between it and the cheaper buildings on Valley street, scarcely eight hundred feet, is to impair the very advantages which the covenant was intended to maintain. The complainant’s acceptance of the conveyance last mentioned, without a restrictive covenant, and his subsequent erection of the greenhouse and small dwelling, evince a disposition upon his part not to, himself, observe the spirit and intent of the covenant, and present an equity for the defendant of the character that induced Lord Eldon, in The Duke of Bedford v. Trustees of the British Museum, 2 Myl. & K. 552, to withhold the enforcement of a covenant essentially similar to that which is here considered. There the covenant was not to use land in a particular manner. Its purpose was that the grantor might have more ample enjoyment of adjoining lands. It was held that a court of equity would not enforce the covenant where subsequent acts of the grantor, or those claiming under him, so altered the character and condition of the adjoining lands that the restriction of the covenant ceased to be applicable according to the intent and spirit of the contract, but that under such circumstances it would leave the parties to their remedy at law. Upon these considerations, I am of opinion that the assistance of this court in the enforcement of this covenant should be denied, and that the complainant should be left to his remedy at law.