Pope v. Bell

35 N.J. Eq. 1

• Court: New Jersey Court of Chancery
• Decided: February 15, 1882
• Status: Published

Opinion

The Chancellor.

The bill is filed for an injunction to restrain the defendant from violating his covenant contained in a deed given to him by the complainants fora lot of land in Paterson. That lot is on the corner of Market (formerly Congress) and Prospect streets, and adjoins on the east a lot which, at the date of the deed, was, and ever since has been, owned by the complainant, Samuel Pope. The property conveyed to the defendant was owned by Mrs. Pope. On Mr. Pope’s property there was, as there still is, a building of seventy-five feet in depth, fronting on Market street, in the second story of which there is and was a large room or hall, known as “ Pope’s Hall.” In the middle of the first floor of the building was the entrance to the hall, and on each side of the entrance was a store. There was a cellar under the building. On the lot conveyed to the defendant there was a building of three stories, also fronting on Market street, and extending back fifty feet alongside of Pope’s building. On the west side of the part of Pope’s building which extended beyond the defendant’s, there were windows, two in the cellar wall, two in the wall of the first floor and two in the wall of the large room or hall. Each lot is one hundred feet deep. The defendant’s deed contains the following reservation and covenant: “And the parties of the first part do hereby reserve out of the above-described property a space of three feet wide, running from the rear of Pope’s Hall, or where the water is taken from the said hall across the said lot to Prospect street, for the purpose of carrying off the water and sewages from the said hall; and also that nothing shall be built or erected on the said lot to obstruct the light of the said Pope’s Hall.” On the rear of the defendant’s lot there was and is a building, and between his two buildings there was a space of twenty-five feet. On that space the defendant is now erecting a building sixteen feet high, to cover the greater part of it, and the complainants seek to restrain him, on the ground that his action in so doing is in violation of the covenant, and will inflict irremediable injury on Mr. Pope, by darkening the windows of his building overlooking that space. The defendant, by his answer, insists that the covenant has reference, not to all the said windows before mentioned, but only to the two windows of the hall itself, and therefore that the obstruction of the light, so far as the windows in the cellar and first story are concerned, is not within the covenant; and further, that if it has reference to them, the proposed building will not be a greater obstruction to the light than the erections which were on that part of the lot when the conveyance was made. The complainants,, it should be stated, allege that that part of the lot was then vacant. The bill is verified by the oath of Mr. Pope alone, and therefore the defendant must, on this motion, rely on his own oath alone as verification of the answer and in support of the motion. Merwin v. Smith, 1 Gr. Ch. 182; Gariss v. Gariss, 2 Beas. 320; Mulock v. Mulock, 11 C. E. Gr. 461. On the bill, the complainants’ right to relief by injunction is very clear. Kirkpatrick v. Peshine, 9 C. E. Gr. 206. The answer, while it admits the existence of the covenant, denies that the construction put upon it by the complainants is the proper one, and insists that if it is, there is no appreciable injury; and if there be, that the complainants have an adequate remedy at law. The decision of the cause will principally depend on the conclusion to be judicially reached as to what is to be understood by the designation “Pope’s Hall,” whether it is the whole building or only the room so called, and that question cannot be decided satisfactorily or with justice to the parties at the present stage of the suit. It should be left until the final hearing, and the injunction retained accordingly. The motion will therefore be denied, with costs. There will, however, in order to bring the cause to a hearing speedily, be a reference to a vice-chancellor, if it be desired.