[22 NJSuper Page 552] Plaintiffs herein seek a prohibitory and mandatory injunction to force the defendants to desist from the further construction of a cinderblock and brick wall some four feet in height, and to remove so much of said wall as is in excess of 18 inches in height. They seek this relief alleging that the wall violates a restrictive covenant contained in a deed from Howard G. Harris and Ida M. Harris, his wife, to Margate Company, dated January 19, 1910 and recorded in the office of the Clerk of Atlantic County in Book of Deeds 423, page 36, and that said Margate Company
was a common predecessor in title of both the plaintiffs and the defendants, each of whom obtained titles to their respective properties through mesne intervening conveyances.
The defendants raise numerous defenses by way of their answer, but argue particularly the following, upon which they now solely rely: (1) the restrictive covenant does not create or establish a neighborhood scheme; (2) if it is found that the covenants did create a neighborhood scheme there was an abandonment or modification; (3) plaintiffs have not established a right to maintain this action; (4) the provision regarding fences is unenforceable; (5) laches.
The facts in connection herewith are as follows:
By deed dated January 19, 1910, Howard G. Harris and Ida M. Harris, his wife, transferred and conveyed to Margate Company a certain tract of land in the City of Margate, County of Atlantic and State of New Jersey, which said deed contained certain restrictive covenants, one of which reads as follows:
"No fence shall be erected or maintained within 30 feet of any Street except a hedge fence or a coping (or both) said coping to be not more than 18 inches in height above the grade of the lots, provided that on any lot having a frontage on Ventnor Parkway no fence shall be erected or maintained except a hedge fence which shall be trimmed so as to conform as closely as practicable to the elevation (with relation to the sidewalk grades and shape of the hedge which may stand within Ventnor Parkway in front) of such lot."
This tract consists of some 77 numbered blocks of land containing a total of 1494 lots, and extends from the Atlantic Ocean on the south to an arm of the bay known as Beach Thorofare on the north, and from Mansfield Avenue on the east to Vendome Avenue on the west. For the width of the two blocks north of the Atlantic Ocean, to Ventnor Parkway, it extends in an easterly-westerly direction for ten blocks.
Both the plaintiffs and the defendants trace their title to the Margate Company.
The plaintiffs, except for Bruce Riddle, are the owners of homes on Union Avenue between Atlantic Avenue and
Ventnor Parkway. Bruce Riddle is the owner of a home between Atlantic Avenue and the Atlantic Ocean.
The defendants are the owners of a parcel of land extending from Thurlow Avenue to Union Avenue on Atlantic Avenue, being Lots 10 and 20 in Block 13.
By request and consent of counsel for the respective parties, the court has personally viewed the entire locality.
The tract encompassed in the Harris-Margate Company conveyance is one of the most attractive residential communities in this locality. There are few lots upon which homes have not been constructed, particularly in the section between Ventnor Parkway and the Atlantic Ocean. Large and expensive homes have been constructed, all of which are tastefully landscaped. The houses are set back some distance from the streets and have well-kept lawns. There are few fences or walls along the street front, so that the view is a pleasing one of continuous turf. Ventnor Parkway is especially pleasing to the eye with its three-lane roadway separated by two islands of shrubs and trimmed grass. There are presently erected some 212 homes between Ventnor Parkway and the Atlantic Ocean.
Although some preliminary work was done on the foundation of the wall here complained of prior to July 1, 1951, on that date defendants commenced the actual construction of the wall as it now exists. Work continued on July 2 and 3 and was completed on July 5, 1951. It runs along the property line on Atlantic Avenue and Union Avenue to a height of four feet. There is no doubt that the wall as so constructed violates the terms of the alleged restrictive covenant.
The first question to be resolved is whether a neighborhood scheme had been adopted.
A neighborhood scheme may be created in a number of ways. In Scull v. Eilenberg , 94 N.J. Eq. 759 (E. & A. 1923), the court said, at page 771, as follows:
"The most complete way, of course, is by a reciprocal covenant, whereby the grantor covenants to insert, in apt language, like covenants
in all deeds of his remaining lots or lands for the common benefit of all of his grantees and their assigns. Another way is for him to offer his lots for sale, and to sell them, on the representation that all lots will be conveyed subject to like covenants for the common benefit, in which case purchasers with notice or knowledge will be bound by the covenant. But, in the absence of either of these methods (as was the case here), the courts will only spell out such a scheme from a plan of lots and sales therefrom where all the deeds from the common grantor for the lots making up any particular neighborhood group of common benefit therefrom, are made subject to the common covenant. If, under these circumstances, the covenant is omitted from a deed of one lot so located that a violation on that lot of the provisions of the covenant would deprive the other lots of the benefit to be derived by them from the common observance of the restriction, there is, in the absence of knowledge or notice of the scheme on the part of the grantee in the deed for such omitted lot, a failure to make out a neighborhood scheme, at least as to that lot and as to such other lots as would lose the benefit of the scheme if it were violated on the lot not subjected to the covenant."
In order to effectively create such a plan or scheme, to be legally effective it must have certain characteristics. In Klein v. Sisters, &c., Saint Elizabeth , 101 N.J. Eq. 761, 139 A. ...