Armstrong v. Leverone , 105 Conn. 464 ( 1927 )

Many of the reasons of appeal relate to attempted corrections of the findings by the excision of facts essential to the plaintiff's cause and the substitution of statements apposite to the defendant's contentions. Thorough perusal and analysis of the finding and draft-finding and the evidence which is before us, although the court also viewed the premises, fails to disclose that any intrinsic fact has been found without evidence or that any material fact sought to be inserted in the finding, and not already present in substance, is admitted or undisputed. Such of the claimed corrections as appear to require specific discussion are adverted to hereafter.

It is found, from abundant evidence, that it was a part of the general plan of development, by the Post Hill Improvement Company, of its land at Ocean Beach, that the land within the so-called "reserved strip" was to be a restricted summer cottage colony, used for residential sites and purposes only, and not for business except with the consent of the owners of three fourths of the lots; that before and at the time the lots were sold this plan was publicly announced and it was represented that appropriate restrictions would be inserted in each deed; that plaintiffs Armstrong and Coit, who were original purchasers of lots, became such and erected cottages relying upon this general scheme and the protection of such restrictions. The restrictions above quoted were placed in the deeds in conformity with such general scheme of development and in order to protect the owners of the other lots on the reserved strip from the prohibited uses and their consequences. That the restriction against commercial use was intended to be for the benefit of the other lot owners is definitely indicated by the provision that it might be waived by consent of a certain proportion — three fourths — of such owners.

The present action and the judgment therein relate only to the land purchased by the defendant from the Fitzgerald estate, and not to the Wilkinson land, which the defendant acquired after this suit was brought.

The major claims of the appellants are that the plaintiffs did not acquire any enforcible interest in the restrictions contained in the deeds to Fitzgerald, but that these could be enforced, if at all, only by the common grantor, the Post Hill Improvement Company, that the benefit of the restrictions accrued only to the remaining land owned by the corporation, and that, by the quitclaim to Wilkinson in 1905, of the residue of the Casino lot, the company parted with its interest in the restriction and it passed to the defendant by the subsequent conveyances.

As applied to the situation delineated by the finding these claims are clearly fallacious. The facts afford a complete occasion for the application of "the doctrine of negative or equitable easement whereby the grantees of a common grantor who has in deeds to successive grantees inserted restrictive covenants for the benefit of a tract divided into several parcels, may as against each other enforce by injunction the observance of the restrictions so created." Gage v. Schavoir,100 Conn. 652, 662, 124 A. 535; Mellitz v. Sunfield Co.,103 Conn. 177, 182, 129 A. 228, and cases cited; DeGray v. Monmouth Beach Club House Co., 50 N.J. Eq. 329,24 A. 388; Evans v. Foss, 194 Mass. 513,80 N.E. 587; Berry on Restrictions on Use of Real Property, § 315. The Post Hill Improvement Company having created such an equitable right, appurtenant to all the land in the strip conveyed by it, to have the restrictions enforced, had no power, even had it so desired, to discharge or affect the restrictions and the equitable rights of lot owners to enforce them. Baker v. Lunde,96 Conn. 530, 538, 114 A. 673. The existence of a publicly announced plan of development involving restrictions upon all purchasers, in effect during all the sales by the common grantor, not only re-enforces and renders certain the applicability of the foregoing principles, but also, under the authorities above cited, disposes of the claim that the plaintiffs, being purchasers prior to the defendant and his predecessors in title, may not enforce the restrictions as against such a subsequent purchaser.

Another contention is that the Casino lot was not included in the "reserved strip," but that designation and the conceded purpose to establish a purely residential section thereon extended to the fifty cottage lots only. The evidence on this subject decisively supports the finding to the contrary and establishes that by "the reserved strip" was meant the entire tract which was reserved by the company in its deed to the city of New London. The incorporation in the deeds to Fitzgerald of the same restrictions which characterized the deeds of the cottage lots, the obtaining of the required consent for the use for business purposes of the northerly portion of the Casino lot by Wilkinson, the restriction of the bathhouse lots to private use, and the conduct of the Post Hill Improvement Company as to its own bathing houses, are significant in this connection.

It appears that the portion so reserved was not actually marked "reserved strip" on the map of the development first filed in the town clerk's office, but the strip was laid out on this and subsequent maps and its location and extent were unmistakably shown thereby and by the recorded deed to the city, so that the slight inaccuracy of reference in the deeds could have misled no one, — surely not the defendant who, from his own evidence, is found to have had actual knowledge of the restrictions on the Fitzgerald land.

The defendant is not aided by the fact that plaintiffs Armstrong and Coit stated on cross-examination that the defendant's building and occupancy of it did not impair their enjoyment of their property. There are other inherent elements, aside from the matter of personal enjoyment, including the cumulative effect of progressive violations upon the utility of the restrictions and the value of the properties affected. Proof of special damage is not necessary, and if the act of the defendant transgresses the restriction it is a violation of the rights of the plaintiffs which is not dependent upon the existence or amount of damage. Berry on Restrictions on Use of Real Property, § 413;Morrow v. Hasselman, 69 N.J. Eq. 612, 61 A. 369;Peck v. Conway, 119 Mass. 546. Moreover, there is no suggestion, in the answer, of reliance upon a defense that the complainants will not be damaged by defendant's violation of the restriction, and if there were it would be incumbent upon the defendant to clearly establish that fact. Goater v. Ely, 80 N.J. Eq. 40,82 A. 611; 18 Corpus Juris, p. 400: Berry on Restrictions on Use of Real Property, § 413.

The defendant seeks to construe and apply the consent given to Wilkinson as extending to and authorizing the sale of merchandise along the entire length of the public entrance to the beach, which adjoins defendant's land on the east, from Bentley Avenue to the beach front. As to this, it is, at most, sufficient to note that at the time when this consent was given the tract now in question was already owned by Fitzgerald and the only land to which the consent to Wilkinson could possibly apply was the northerly part of the Casino lot as described in the deed contemporaneously given to him. Moreover, it is a fair inference from the finding that Fitzgerald and his estate observed the restrictions during all of the period, about twenty-four years, of their ownership. The descriptive reference in the written consent obviously related to the location and not the extent of the lot.

The claim is also advanced that the restrictions in the deeds to Fitzgerald apply to places of business opening directly upon the beach only, and not to stores opening on the thoroughfare from Bentley Avenue to the beach, but we find nothing in the record to warrant such a contention.

The finding states that on some of the cottages along the reserved strip there have been displayed signs offering board and lodging; also that on one of the lots there is a sign designating a portion of the lot as an entrance to public baths which, however, are located on the opposite, northerly, side of Bentley Avenue and not on the reserved strip; the business for which Wilkinson obtained consent has been continued on the lot deeded to him; and a portion of the Casino-lot tract has been used for private bathing houses. At the easterly end of the northerly side of Bentley Avenue, and on other streets running northerly and at right angles to Bentley Avenue, there are stores and shops, but this is not in violation of the restrictions contained in the deeds of such lots, which restrictions, as before noted, were limited to ten years. But the reserved strip still constitutes a summer residence colony and all structures thereon are used for residential or private bathing purposes, except the buildings on the land owned by the defendant, and the court finds that the original scheme of development has never been abandoned in any essential feature.

In order to work such an abandonment the conditions must have undergone such a material change as to prevent the general plan relating to the reserved strip from being carried out. The materiality of such changes is to be determined by the circumstances of each case and the test is whether they are such as to indicate an abandonment of the original general plan and make its enforcement inequitable because of the altered condition of the property under restriction.Morrow v. Hasselman, supra, p. 616; Berry on Restrictions on Use of Real Property, §§ 372, 373; 18 Corpus Juris, pp. 400-403. The finding that there has been no such abandonment in the present case is consistent with and sustained by the subordinate and operative facts. Neither can there logically be deduced any implied waiver or consent to such a departure from the original plan and purpose as is involved in the conduct of the defendant which is here complained of.

The trial court justifiably concluded that the maintenance of the place of business by the defendant on the (Fitzgerald) land described in the complaint is a violation of the plaintiffs' rights, and they are entitled to the injunctive relief which was granted, unless, as the applicant further contends, the plaintiffs, through laches, have led the defendant into a position where it is so difficult or impossible to enjoin him without inflicting disproportionate damage and loss, that to do so would be inequitable. Fisk v. Hartford, 70 Conn. 720,732, 40 A. 906; Gage v. Schavoir, 100 Conn. 652,668, 124 A. 535. The record affords no persuasive basis for this claim. The situation as disclosed by the public records was clear and significant; the defendant had actual knowledge of the restrictions in the deeds to Fitzgerald; the court finds, from evidence, that while he was erecting the first structure for business purposes he was warned that its use as a store would violate the restrictions. Within two months after the erection of this first structure the present action was brought, fully apprising the defendant of the plaintiffs' claims. About a year thereafter the defendant removed the temporary building, erected the present permanent structure, and has ever since continued to do business therein. The defendant's claim of inequity because the plaintiffs did not seek a temporary injunction pending trial is without merit, especially under the circumstances just referred to. The situation squares substantially with that depicted in Stewart v.Finkelstone, 206 Mass. 28, 38, 92 N.E. 37, 28 L.R.A. (N.S.) 634: "The defendant with full knowledge of the restrictions `deliberately attempted' to override them. . . . He took his chances as to the effect of his conduct with eyes open to the results which might ensue. . . . Entrenchment behind considerable expenditures of money cannot shield premeditated efforts to evade or circumvent legal obligations from the salutary remedies of equity."

We perceive no reason why the court should or properly could deny the plaintiffs relief because of laches on their part or manifest inequity or hardship to the defendant.

There is no error.

In this opinion the other judges concurred.