Opinion
09-09-1926
MATTHEWS v. CAPTAIN.
Walter G. Brandley, of Caldwell, for complainant. Phillip D. Elliott, of Newark, for defendant.
Suit for injunction by Emma C. Matthews against Adaline B. Captain. Decree for complainant.
Walter G. Brandley, of Caldwell, for complainant.
Phillip D. Elliott, of Newark, for defendant.
CHURCH, Vice Chancellor. This is a bill to enjoin the alleged violation of restrictions in a deed for property in West Caldwell, N. J. The restriction is as follows:
"No building other than a single family dwelling house to cost not less than $2,500, with necessary outbuilding, shall be built on each 50-foot lot."
In May, 1923, defendant erected on the lot a building containing a garage and five living rooms, which was occupied by her and her children. In August, 1923, defendant demanded that complainant, who then maintained a water line in the vicinity, should furnish her water at her then residence. On complainant's refusal, defendant appealed to the Board of Public Utilities Commissioners of the state, stating that the building was used as a residence. By direction of this board the water was installed.
In May, 1923, defendant erected on the front of said lot a dwelling house, which she now occupies. The upper floor of the older building, together with one room on the lower floor, are occupied by tenants, who pay rent to the defendant. It therefore appears that defendant herself, before the Utilities Coinmission, has defined the buildings she now calls a garage as a residence; i. e., "dwelling house." This case is very similar to that of Goater v. Ely, 80 N. J. Eq. 40, 82 A. 611, in which Vice Chancellor Garrison held that a structure, on the ground floor of which was a boiler room and garage, and on the second floor bedrooms and a bathroom, was a dwelling house, and allowed an injunction against its use as such.
The point is raised that there have been other violations of this restriction, and therefore the complainant cannot now object. In the first place, the instances mentioned in the agreed state of facts were only temporary occupancies by two distinct families, if they were such, for all used the same kitchen. Moreover, there is no evidence that complainant acquiesced in these alleged violations. In Bridgewater v. Ocean City R. Co., 62 N. J. Eq. 276, 49 A. 801, the court said:
"The claim that the complainant has lost all right to enforce the covenant because the association has, within the past three years, wrongfully permitted several buildings to be put on the camp ground, is no excuse for the defendants. No such acquiescence of the complainant is proven as charges him with any liability for the association's breaches of the covenant; nor can the defendants, donees of the association, set up the wrongdoing of their donor to protect them against the enforcement of the donor's implied covenant."
I will advise a decree accordingly, restraining the use of the older building as a residence or dwelling.