On appeal from a decree of the former Court of Chancery dismissing the complaint herein.
For affirmance -- Chief Justice Vanderbilt, and Justices Case Heher, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Ackerson, J.
This suit was brought under the provisions of R.S. 2:76-38 et seq., to quiet the title to a plot of land against restrictions imposed by a former owner in the chain of title. The lot in question is located at the northwest corner of Reckless Place and Broad Street in the Borough of Red Bank. It was originally part of a tract purchased by Benjamin J. Parker in 1901, and was conveyed by him to Gustave A. Schwartz in 1907, by a duly recorded deed, subject to restrictions which limited its use to a one family residential dwelling with setback lines, which restrictions were made to run with the land. A one family dwelling was erected on this lot in conformity with these restrictions, and the property was finally acquired by the plaintiff, Samuel Weinstein, in 1947, pursuant to a contract of sale which provided that the lot was being sold subject to restrictions of record, but the deed which followed made no reference thereto, although the plaintiff concedes that he had actual notice thereof.
The factual background which led up to this litigation may be briefly summarized. The plaintiff's lot has a frontage of
112.5 feet on Broad Street and 200 feet on Reckless Place which street runs westerly about 1,000 feet to Maple Street. It was originally one of sixteen building lots which the aforesaid Parker plotted out of three separate tracts of land which he owned on Reckless Place. Parker purchased the first tract, situated on the northwest corner of Reckless Place and Broad Street, in 1901, as hereinabove stated, and subsequently divided it into three lots, one of which is the property in question now owned by the plaintiff. In 1905 he purchased at sheriff's sale two more tracts of land situated on the south side of Reckless Place, from Maple Street to Broad, but separated by a plot of 52 feet frontage on Reckless Place, which plot was not restricted. These two separate tracts of land were divided by Parker into thirteen lots, which, with the three lots already carved out of the first tract above mentioned, made a total of sixteen lots owned by him on Reckless Place.
The first sale made therefrom by Parker was in August, 1905, consisting of a lot 50 feet wide along Reckless Place, to which was added in March, 1906, an adjoining strip 10 feet in width, presumably to enable the grantee to have more space for building purposes. (This is referred to as the Smock property.) These two lots were sold without restrictions, and are located on the south side of Reckless Place at approximately the center of the block. Also two other lots at the extreme western end of the block at Maple Street were sold by Parker in February, 1911, without restrictions as to their use. They are separated, however, from his other lots to the eastward on the same side of Reckless Place, by the plot of ground 52 feet in width (never owned by Parker), which divided the two original tracts purchased by him at the sheriff's sale hereinbefore mentioned.
All of the remaining twelve lots were conveyed by Parker at various intervals from 1906 to 1911 inclusive. All of them, with the single exception hereinafter noted, plus five lots on the north side of Reckless Place owned by Parker's wife, were sold by them subject to covenants restricting the use thereof to one family residential purposes and providing for setbacks
which varied slightly. The sole exception just referred to, is a lot on the southwest corner of Reckless Place and Broad Street, opposite the plaintiff's property, fronting 200 feet on Reckless Place and 140 feet on Broad Street, which lot was sold by the common grantor in 1910 to the First Presbyterian Church without restriction as to the character of the use upon that portion of the lot fronting on Broad Street for a depth of 150 feet along Reckless Place, but providing for setbacks and other requirements. The westerly 50 feet of this lot was restricted in the same manner as the other restricted lots.
The plaintiff, Weinstein, is desirous of freeing his lot of restrictions in order to erect a business establishment thereon. The Vice-Chancellor, in dismissing the complaint herein by order filed June 3, 1948, found that a neighborhood scheme of development had been established by the Parker conveyances; that the character of the neighborhood has not been changed, and that the restrictions imposed by the Parker deeds are still in existence and are valid and binding. An appeal was taken by the plaintiff to the former Court of Errors and Appeals on September 7, 1948, which appeal, by the transfer provisions of our new Constitution, is now before us for determination.
In support of his appeal, the plaintiff contends that by failing to impose restrictions for residential use upon five of the sixteen lots comprising the original Parker holdings, the grantor failed in the creation of a neighborhood scheme of development.
We do not agree with this contention. It is not necessary that all lots in an entire area be made subject to restrictions in order to constitute a neighborhood scheme. The absence of restrictive covenants by the common grantor in some of the properties conveyed by him may be evidence of an intent not to create a neighborhood plan but this evidence is not conclusive. There are other factors which must be considered. As stated in Humphreys v. Ibach, 110 N.J. Eq. 647, 652 (E. & A. 1932), whether such a plan has ...