Opinion
Submitted February 12th, 1932.
Decided May 16th, 1932.
1. The statute under which this suit to quiet title against restrictions is brought ( P.L. 1909 p. 233; Comp. Stat. p. 5405) is not available to a complainant who holds lands under a deed in which are set forth the questioned restrictions.
2. Two conveyances were made at a time when the common grantor had not yet formulated any general scheme for the development of the neighborhood. These covenants are not enforceable by virtue of such a general plan and it is immaterial that a few years later a plan was made and put into effect on property adjoining the lands conveyed.
3. Whether the common grantor intended to and did create a general neighborhood plan, is a question of fact to be answered not only by the wording of the deeds but by the surrounding circumstances and acts of the parties. The general uniformity of the restrictions in all the deeds, the reliance placed by the purchasers of lands on the restrictions, the plotting of the tract into building lots, the filing of a map and the actual development of the tract by the erection thereon of many dwelling houses, are all indicia of a neighborhood plan.
4. An enforceable plan must be uniform and therefore the objection is well taken as to the restrictions on the number of dwelling houses which might be erected, inasmuch as the restrictions in this respect vary from deed to deed. But this defect does not vitiate the other restrictions or the plan as a whole; the plan fails only so far as it is inequitable.
5. In holding that only that part of the plan fails which is inequitable, the court does not make a new contract for the parties; the court only refuses to enforce the contract in an inequitable manner.
6. The restrictions on every lot throughout a development need not be identical. They may vary for various sections of the tract in accordance with the design of the original grantor.
7. Whether a change of conditions in the neighborhood is a ground for refusing to enforce restrictions has been questioned. Frick v. Foley, 102 N.J. Eq. 430. But assuming that such a change is a ground for relief in this case, it must be so great as clearly to neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenants.
8. Complainants have fallen far short of showing such a change in conditions as would move the court of chancery to declare the restrictions no longer valid.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Bigelow, who filed the following opinion:
"This is a bill under the provisions of P.L. 1909 p. 233; Comp. Stat. p. 5405, to quiet title against restrictions. The scope of relief under the statute is discussed in Welitoff v. Kohl, 103 N.J. Eq. 454. Complainants own severally twenty-two lots in Teaneck, Bergen county; defendants are lot owners in the same immediate neighborhood.
"In 1917, John J. Phelps, executor, c., and others, conveyed to the estate of William Walter Phelps, a corporation, a tract of land in which was included all the lots owned by either complainants or defendants. The first deed by the estate of any of the lands involved in this suit was in 1921, conveying to Julius P. Richter a lot one hundred feet front on the north side of Cedar lane and two hundred feet deep. On the west side of this lot was a private road through the Phelps property, known later as Heasley avenue and now Palisades avenue. The same year, the estate conveyed to Johanne C.J. Schulze, a large lot of irregular dimensions, bounded on the west by Heasley avenue and separated from the Richter lot by a street to be known as Francis street. Each of these deeds contained covenants by the grantee restricting the use of the property and it was expressly agreed therein that these covenants "shall attach to and run with the land, and it shall be lawful, not only for the party of the first part, its successors and assigns, but also for the owner or owners of any property in the neighborhood of the premises hereinabove described, deriving title from or through said party of the first part, to prosecute any proceeding at law or in equity against the party or parties violating said covenants, their heirs, executors, administrators or assigns." The premises described in these deeds are now owned by complainants Mary P. Richter, Mary A. Neill and Michael Boros and wife.
"When the estate made these two conveyances, it had not formulated any general scheme for the development of the neighborhood and so these covenants are not enforceable by virtue of such a general plan. It is immaterial that a few years later a plan was made and put into effect on the property of the estate east of these lots. It is apparent, however, that the restrictive covenants were made for the benefit of subsequent owners of the other property of the estate in the neighborhood. The lots now owned by all of the defendants were owned by the estate in 1921, and so these covenants may be enforced by defendants unless they have been guilty of such conduct or there has been such a change in the situation as to make inequitable the enforcement of the covenants. Leaver v. Gorman, 73 N.J. Eq. 129; Enderle v. Leslie Construction Co., 102 N.J. Eq. 569.
"On April 11th, 1924, the estate conveyed to Mrs. Schulze a lot on the east of the land conveyed to her in 1921. It had a frontage of fifty-seven feet on Francis street and runs back three hundred feet to a point. This parcel does not seem to be included within the scope of the development mentioned below. It is now owned by the defendant Charlotte A. Hansing.
"On October 1st, 1923, the estate conveyed to Mrs. Schulze a plot adjoining on the east the land sold to Richter two years earlier. This deed contained restriction on the use of the property. Part of this land is still owned by Mrs. Schulze who is one of the complainants. The statute under which this suit is brought is not available to a complainant who holds lands under a deed in which are set forth the questioned restrictions. The bill of complaint must therefore be dismissed as to the complainant Schulze as well as complainants Edward M. Graffin and wife, William Jahnel and wife and Madeline Emerson. They all hold by deeds in which are inserted restrictions.
"Part of the land conveyed to Mrs. Schulze October 1st, 1923, is now owned by the complainants Michale A. Cafarelli and wife. The deeds under which they hold, as well as the deeds under which all the other complainants hold, contain no restrictions. The restrictions in the Schulze deed are as follows: "To have and to hold said premises with the appurtenances unto the party of the second part, her heirs and assigns forever, subject, however, to the following restrictions which shall attach to and run with the land, viz.:
"`1. Not more than two dwellings shall be erected on the premises above described and not more than one house on either street.
"`2. No dwelling house shall be erected to cost less than $5,500 or to stand nearer than twenty-five feet from any street line. This latter restriction to apply to and cover steps, piazzas and bay-windows and other parts of any dwelling hereafter erected.
"`3. No garage or out-building shall be erected within sixty feet of any street line, unless directly connected with a dwelling house.
"`4. No building shall be erected or used on said premises for the purpose of or as a saloon, hotel, store, market, gasoline and oil service station, public garage, factory, or for any dangerous, noxious or offensive purpose whatever.'
"By the time this sale was made, the estate had planned the development of the property east of the lots already mentioned as a restricted residential neighborhood. The tract embraced in the plan ran nine hundred and ten feet along the north side of Cedar lane from the Richter lot easterly to Westfield avenue and had a depth of three hundred and forty-seven feet. Through the center of the tract and parallel with Cedar lane ran Francis street. Each lot had a frontage of fifty feet or thereabouts; those on the north side of Francis street had a depth of one hundred and fifty feet and those on the south a depth of one hundred and ninety-seven feet, running clear through to Cedar lane. Seven lots fronted on Westfield avenue and had a depth varying from one hundred and sixty feet to one hundred and seventy-nine feet. On February 27th, 1924, the estate conveyed to the defendants Arthur J. Richards and wife, a lot described as lot No. 25 in block B, on a map entitled "Map of property of the estate of W.W. Phelps, Teaneck Development, Teaneck, New Jersey." This is the first reference to a map; thereafter, in all the deeds except the Schulze deed of April 11th, 1924, the lots conveyed are described by reference to a map. On September 8th, 1924, a new map was drawn, and was approved by the township committee of Teaneck, October 7th, 1924, and filed in the county clerk's office, November 1st, 1924. It does not appear that there was any difference in these maps except in the title and in the block numbers. All of the lots in the tract save one, were sold by the estate before May, 1927. The last lot was sold to Mrs. Schulze and her husband, March 15th, 1930, after the beginning of this suit.
"All the deeds by the estate contain the second and fourth restriction above quoted, namely, requiring each dwelling house to cost $5,500 and to be set back twenty-five feet and forbidding saloons, c. Most of the deeds permit only one dwelling house if the deed conveyed only one lot, or two dwelling houses if the deed conveyed two lots, c. But the deeds for the lots owned by defendant Ibach allow only two houses on three lots. One deed conveying to the defendant Ralph and Glenn Hacker, two lots on the north side of Francis street immediately adjoining the property conveyed to Mrs. Schulze on May 11th, 1924, and a deed to the Unity Home Builders, Incorporated, January 13th, 1926, which conveys a lot on Westfield avenue at the northeast corner of the tract in question and another lot from a different tract, contain no restriction on the number of dwelling houses which may be erected on the premises conveyed.
"There is also some variance in the third restriction. The two deeds last mentioned, namely, those to the Hackers and the Home Builders, require garages or outbuildings to be set back one hundred feet. A setback of seventy-five feet is required in all the other lots fronting on Westfield avenue, or on the north side of Francis street. The deeds for all lots on the south side of Francis street running through to Cedar lane, require a setback of sixty feet.
"Whether the estate intended to and did create a general neighborhood plan, is a question of fact to be answered not only by the wording of the deeds but by the surrounding circumstances and the acts of the parties. The general uniformity of the restrictions in all the deeds, the reliance placed by purchasers of lots on the restrictions, the plotting of the tract into building lots, and the filing of the map, the actual development of the tract by the erection thereon of many dwelling houses, are all indicia of a neighborhood plan.
"Complainants contend that the variations in the restrictions above noted, make invalid the whole plan because an enforceable plan must be uniform. I think this objection is well taken as to the restrictions on the number of dwelling houses which may be erected, but this defect does not vitiate the other restrictions or the plan as a whole. The reason that uniformity is required it to afford to each lot owner a protection equal to the restriction. It would be inequitable to restrain an owner from building two houses on his lot when his neighbor is at liberty to build two on a similar lot. The plan and the protection it gives to those who have made their homes on the tract in reliance thereon, fails only so far as the plan is inequitable. Beyond that, it remains valid and enforceable. Note that the court does not make a new contract for the parties; the court only refuses to enforce the contract in an inequitable manner.
"The restrictions on every lot throughout a development need not be identical. They may vary for various sections of the tract in accordance with the design of the original grantor. Sanford v. Keer, 80 N.J. Eq. 240; Schreiber v. Drosness, 100 N.J. Eq. 591. No evidence has been presented to show that it was unreasonable to require a seventy-five-foot setback for garages on Westfield avenue and on the north side of Francis street and a sixty-foot setback on the south side. In the absence of such evidence, I must presume that this is a reasonable difference in the restrictions on the two sets of lots and was part of the design of the estate.
"I find that the restrictions (except as to number of dwellings) appearing in the complainants' chains of the title were valid when they were created about five years ago. Complainants contend that in this short while conditions in the neighborhood have so changed as to make inequitable enforcement at the present time. Whether such a change is a ground for refusing to enforce restrictions has been questioned. Frick v. Foley, 102 N.J. Eq. 430; affirmed, 110 N.J. Eq. 573. But assuming that such a change is a ground for relief in this case, it must be so great as clearly to neutralize the benefits of the restrictions to the point of defeating the object and purpose of the covenant. Sandusky v. Allsopp, 99 N.J. Eq. 61. Complainant relies on evidence of the increase in traffic on Cedar lane and the growth in the number of stores and similar business establishments on this street east and west of the tract in question and even directly opposite it. Business on Palisades avenue has also been proved. No business establishments, however, upon the tract which is the subject of this controversy have been shown, but it appears that nineteen dwelling houses have been erected on the tract on Francis street within the last few years on the faith of these restrictive covenants and in the belief of their owners that their property would not be depreciated for dwelling purposes by the encroachment of business within the restricted area. These are new houses which should be useful as homes for many years to come. Complainants have fallen far short of showing such a change in conditions as would move the court to declare these restrictions no longer valid.
"There should be a decree establishing in favor of all the answering defendants the restrictions on the land of the complainants Richter, Neill and Boros, and determining that the restrictions (except as to number of dwellings) on the lots of the other complainants, are valid as to all answering defendants except Hansing, whose lands are not within the tract uniformly developed."
Messrs. Morrison, Lloyd Morrison, for the appellants.
Messrs. Melosh, Morten Melosh, for the respondents.
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by Vice-Chancellor Bigelow.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 14.
For reversal — None.