INGERSOLL, V. C.

(Syllabus by the Court.)

Suit by Montice L. Scull and others against John P. Eilenberg. On bill for injunction. Bill dismissed, except as to relief prayed for by complainant Scull, which is granted.

Cole & Cole, of Atlantic City, for complainants.

Bourgeois & Coulomb, of Atlantic City, for defendant.

INGERSOLL, V. C. The bill was originally filed by the complainant, Montice L. Scull. On the 7th day of August, Phoebe Adams and Jennie A. Sharpe were admitted as parties complainant, and on September 11, 1922, W. Kendall Read, Joseph A. Greenberg, R. Augusta Healy, Charles Mundy, Edward A. Bookmyer, and Martin E. Brigham were also added as parties complainants. At the hearing it appearing that the title to the Bookmyer property was in the wife, Anna H. Bookmyer, she was substituted in place of Edward Bookmyer, and for the same reason Jennie Greenberg was substituted for Joseph J. Greenberg, and Laura M. Mundy for Charles Mundy.

The bill is filed to restrain the defendant from erecting a building at the south westerly corner of Atlantic and Montpelier avenues, in Atlantic City, within 20 feet of said Montpelier avenue.

The Chelsea Beach Company was, prior to 1887, the owners of a large tract of land in Atlantic City, which they plotted into lots and streets.

The complainants and defendants are owners of lots upon this tract; that owned by the complainant Scull was conveyed by the Chelsea Beach Company by deed dated May 28, 1887; that of complainant Sharpe, by deed dated June 4, 1887; that of complainant Adams, by deed dated May 7, 1892; that of complainant Bookmyer, by deed dated January 13, 1887; that of complainant Greenberg, by deed dated March 31, 1887; that of complainant Brigham, by deed dated March 2, 1889; that of complainant Heaton, by deed dated June 27, 1887; that of complainant Read, by deed dated June 24, 1887; and that of defendant Eilenberg, by deed dated March 16, 1887.

Each of the above-recited deeds contained restrictions as follows:

"Under and subject nevertheless to the following covenants and conditions which are hereby made a part of the consideration of this conveyance: That no building shall at any time be erected within twenty feet of the front property line of any street or avenue, except on Atlantic avenue, nor within five feet of the side lines of said lot, except where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire without regard to the intervening line or lines, providing the same is not built within five feet of the outside lines of the said lots; nor within twenty feet of the front property line thereof, andalso, that no building of less value than five hundred dollars shall be erected thereon. * * * "And it is expressly understood and agreed, that the said several covenants on the part of the said party of the second part, above specified, shall attach to and own with the land, and it shall be lawful not only for the said Chelsea Beach Company, and their successors and assigns, but also for the owner or owners of any lot or lots adjoining in the neighborhood of the premises hereby granted, deriving title from or through the said Chelsea Beach Company to institute and prosecute any proceedings at law or in equity against the person or persons violating or threatening to violate the same, it being understood, however, that his covenant is not to be enforced personally for damages against the said party of the second part, his heirs or assigns, unless he or they be the owner or owners of the said premises or of some part thereof at the time of a violation of the said covenant or of a threatened or attempted violation thereof but the said covenant may be proceeded in for an injunction of and for a specific execution thereof against the said party of the second part, his heirs or assigns and for damages against the party or parties violating the said covenant they or their heirs, executors or assigns."

The land of the complainant Mundy was conveyed by the Chelsea Beach Company to Clement J. Adams by deed dated August 22, 1893, containing restrictions of the same general character as the other deeds, excepting in that concerning the building within 20 feet of the front property line the words "except on Atlantic avenue, Arctic avenue, and the ground between Arctic avenue and the Thoroughfare," were added.

Adams and wife, upon the date of the deed to him, conveyed the premises to the Chelsea Land & Improvement Company, and on May 3, 1900, that company conveyed the premises now owned by the complainant Mundy to her husband, Charles E. Mundy, and each of these deeds contained the restrictions as in deed from Adams.

At the hearing, objection was made to testimony concerning this property, upon the ground that it was too remote from the land in controversy. The testimony was admitted; but in the determination of the question at issue the rights of this complainant have not been considered, as it has been unnecessary to do so. The same may be said of the complainant Bookmyer.

The complainant also offered in evidence a deed from the Chelsea Beach Company to Charles R. Myers, dated April 30, 1889, which contained the usual Chelsea Beach Company restrictions, and also contained copy of resolution purporting to have been passed by said corporation. This resolution reads as follows:

"By resolution of the board of directors of the said Chelsea Beach Company, the above restriction on the Atlantic avenue lots is rendered null and void and the following restriction is hereby made a part of this conveyance: That no building shall at any time be erected on a corner lot on Atlantic avenue within five feet from the side street property line, but may be erected to full party line of adjoining lot; and all other Atlantic avenue lots may be erected to full party line of adjoining lots."

The first contention of the defendant that none of the complainants, excepting Scull, Adams, and Sharpe, can be heard to complain because each is guilty of laches, in that they permitted the defendant to expend large sums of money in the partial erection of the building at the location now complained of; no one of them having taken any action in reference thereto until after the return day of the rule to show cause.

The contention must be sustained as to the complainants Read, Bookmyer, Greenberg, Brigham, Heaton, and Mundy. Smith v. Spencer, 81 N. J. Eq. 389, and cases therein cited, page 393, 87 Atl. 158.

The second contention of the defendant is that there was no general scheme by the Chelsea Beach Company. This has already been determined against the defendant in Waters v. Collins (N. J. Ch.) 70 Atl. 984, and similar restrictions in deed, Adams to Chelsea Land Company, in Griscom v. Barcelonne and Ambassador Hotel Corp., 90 N. J. Eq. 309, 107 Atl. 585; Brigham v. H. G. Mulock Co., 74 N. J. Eq. 287, 70 Atl. 185; Pearson v. Stafford, 88 N. J. Eq. 385, 102 Atl. 836.

The passage of the resolution above quoted and the recital of it in deeds at a later day than the date of the conveyance of the lands of the complainant and defendant cannot in any way affect the contractual rights of the parties to those deeds. Waters v. Collins, supra.

Quoting V. C. Reed in that case: "The company could not sell lots, holding out to the grantees a restrictive scheme intended to advance the value of the property sold, at the expense of property to be yet sold, and afterwards receive an enhanced price for subsequent lots, by a removal in whole or in part of the restriction bargained for. To the point that a party cannot be absolved from such a restriction by a subsequent agreement or resolution is the case of Coudert v. Sayre, 46 N. J. Eq. 386."

It is next contended that the restriction requiring building to be erected at least 20 feet from the street line or within 5 feet of the side line has been abandoned and waived in the neighborhood of defendant's property. Much testimony has been taken concerning the many alleged violations of this restriction.

The statements of Vice Chancellor Learning in Bowen v. Smith, 76 N. J. Eq. 456, at page 462, 74 Atl. 675, at page 678:

"It seems to me clear that any claim of bar asserted against the rights of an owner of a single lot by reason of acquiescence in the violation of restrictive covenants of this nature must be measured in its force by the relation of the asserted violation to the individual lot.I am unable to discern any duty, the failure of performance of which should operate as an equitable bar, upon the part of the owner of a single lot on a tract of land similar to the one now in question, to apply to the courts for the enforcement of restrictive covenants the violation of which in no appreciable manner affect such owner. This was, I think, the view entertained by Vice Chancellor Emery in Morrow v. Hasselman, 60 N. J. Eq. (3 Robb.) 612, and this view was followed by me in Barton v. Slifer, 72 N. J. Eq. (2 Buch.) 812, and again in Brigham v. Mulock Company, 74 N. J. Eq. (4 Buch.) 287," are as applicable in the present case as in the one then decided. The testimony now presented does not take this case without the rule above stated, and this contention of the defendant must fall.

The final contention is that the complainants have violated the restriction they now seek to enforce, and therefore are in no position to ask the aid of this court to compel another party to observe it.

If the complainants have so violated these restrictions, the bill must be dismissed. Roberts v. Scull, 58 N. J. Eq. 405, 43 Atl. 583; Ocean City v. Headley, 62 N. J. Eq. 322, 50 Atl. 78; Smith v. Spencer, supra.

The bill having been dismissed as to complainants Read, Bookmyer, Greenberg, Brigham, Heaton, and Mundy, it is unnecessary to consider the status of their property.

The complainant Slmrpe's property has a sun parlor 121/2 feet east of the easterly line of Montpelier avenue. An examination of Exhibit D 1 shows the sun parlor to be a porch inclosed in glass and is apparently used as a room of the house.

The complainant Adams' property has a bay window on the first and second floors, 181/2 feet west of the westerly line of Montpelier avenue, with a porch on brick foundations with windows 13 feet from Montpelier avenue.

The complainant Scull's has a solid stone foundation under the porch, 121/2 feet east of Montpelier avenue. A photograph of this property is also offered in evidence.

It is unnecessary to determine whether a bay window is a violation of this restriction.

The original complainant, Scull, is not charged with a violation of the restriction, unless the fact that a "solid stone foundation under the porch" constitutes such violation.

An open porch is not a violation of the restriction in this case. Pearson v. Stafford, supra; Brigham v. Mulock Co., supra.

Chancellor Walker, in Pearson v. Stafford:

"Houses and hotels have porches, and as they almost invariably project out from the buildings it would seem that a restrictive covenant which would prevent the erection of a building beyond a certain line back from a street, but silent as to porches, ought not to be construed to prevent the building of porches within the prohibited area, and who shall say how extensive the porches may be? Of course, if, under the guise of building a porch, an extension of the building was attempted, such, for instance, as increasing the dining room space in an inclosed one-story porch-like addition to the building, thus making an enlargement of the dining room proper, all inclosed as within the building, that might well be considered a breach of the covenant. Each case would necessarily depend upon its own circumstances."

The evidence concerning Scull's house, without any attempt to show that same was an "extension of the building" as above referred to, cannot be construed to prove such a violation of the restriction as to prevent Scull from obtaining the relief prayed for.

The result is that the bill be dismissed as to all the complainants above named excepting Scull, and the relief prayed for by complainant, Scull, be granted.

Let a decree be prepared in accordance with the view expressed.