On appeal from Superior Court, Appellate Division, whose opinion is reported in 15 N.J. Super. 215.
For reversal -- Justices Heher, Oliphant and Burling. For affirmance -- Chief Justice Vanderbilt and Justice Wachenfeld. The opinion of the court was delivered by Burling, J.
This is a civil action. The plaintiff instituted the suit by complaint against the defendant in the Superior Court, Chancery Division, seeking the remedy of injunction for the enforcement of certain restrictive covenants relating to real property. After trial, the Superior Court, Chancery Division, entered judgment dismissing the complaint. The plaintiff pursued an appeal to the Superior Court, Appellate Division, and that court reversed and set aside the judgment of the Chancery Division. Thereupon the defendant filed a petition for certification with this court, which was granted. Houston Petroleum Co. v. Automotive Products Credit Association, Inc., 8 N.J. 248 (1951).
There is little controversy here as to the facts which became the foundation of this suit. The plaintiff in its complaint claimed, and the defendant in the pretrial order admitted,
that one Lotta D. Byrnes and others, partners trading as Byrnes Realty Company (hereinafter called Byrnes), being the owners of a tract of land (including the premises in question) located in the City of Linden, County of Union and State of New Jersey, on the northwesterly side of New Jersey State Highway No. 25 (also known as Edgar Road) entered into a certain agreement in writing with the City of Linden dated April 15, 1947, recorded April 17, 1947, in Book 1620 of Deeds for Union County at page 434, etc., which included the following pertinent language:
"Whereas, Byrnes Realty Company has applied to the Mayor and Common Council of the City of Linden, in the County of Union, to reclassify said premises so that the same shall come within and be subject to the provisions of Section 6-E (light industrial district) of the zoning ordinance of the said City of Linden; and whereas, Byrnes Realty Company in connection with its said application has agreed that said lands and premises if and when zoned as a light industrial district, shall be subject to the covenants and restrictions hereinafter set forth; * * *."
The covenants and restrictions contained in the aforesaid agreement included a setback of 75 feet from the northerly line of the right-of-way of State Highway No. 25 and a provision that the area between the northerly line of the right-of-way of said highway and the setback line be "seeded and suitably planted, excepting, however, such part of said area (not to exceed fifty (50%) per cent thereof) as shall be constructed and used for driveways and parking space."
It was further provided that said covenants and restrictions should become effective on the rezoning of the area as requested by Byrnes and continue in effect so long as the premises remained so zoned or until April 1, 1977, provided that they might be released or modified at any time by agreement in writing between the City of Linden and the owner or owners of all or all portions of said land and premises.
The City of Linden, by ordinance adopted on the same date (April 15, 1947) rezoned the Byrnes tract described in the above mentioned agreement to include said lands and
premises in "Section 6-E (light industrial district)." It is clear from the evidence introduced at the trial of this cause that this rezoning was effected on consideration of the making of the aforesaid agreement. It was also claimed and admitted that on March 29, 1948, Byrnes conveyed all the said tract, subject to the covenants and restrictions contained in the aforesaid agreement, to Industrial Land Corporation, which in turn on the same date and likewise subject to said covenants and restrictions conveyed all land and premises to Clifford J. Colville and others trading as Macner Realty Company (hereinafter referred to as Macner). In the pretrial order it was stipulated that the deeds for said conveyance contained the following language:
"This conveyance is made subject to * * * covenants and restrictions imposed upon said premises by a certain agreement made between the grantor and the City ...