Clapp, Jayne and Hughes. The opinion of the court was delivered by Clapp, S.j.a.d.
Plaintiff appeals from a judgment of the Superior Court, Chancery Division, entered on final hearing below, which refused to grant the mandatory injunctive relief she had applied for. She had sought to have the court compel the defendant Jacob Ellis Realties, Inc. (herein called Ellis) to remove portions of a building erected on its premises in violation of a restrictive covenant. Instead the court awarded her, as against Ellis, permanent damages in the sum of $1,000 for the breach of the covenant. She contends on this appeal that the injunction should have issued, but if not, that she should have received a more substantial pecuniary award.
Plaintiff and Ellis own adjoining parcels of land, the title to which formerly stood in the names of Arthur S. Flagg and wife. In 1925 the Flaggs conveyed Ellis' parcel to The Pierson Company by deed containing the above-mentioned covenant reading as follows:
"The party of the second part [The Pierson Company], for himself and his heirs and assigns, hereby covenants and agrees to and with the said Arthur S. Flagg, his heirs and assigns, that if and
when a building shall be erected upon the lands above described, the southeasterly side wall thereof, above (sic) planed fifteen feet above the elevation of the northeasterly curb of Elm Street shall not at any point be within four feet of the southeasterly side line of the lands above described [this side line is the boundary line between Ellis' parcel and plaintiff's parcel], it being intended that an air space four feet wide, extending upward from a plane fifteen feet above the grade of the present curb, shall always be reserved for the benefit of the lands remaining to Flagg, this conveyance being made upon that condition."
The "lands remaining to Flagg," which we may for convenience designate the dominant tenement, were in 1932 conveyed to the plaintiff and her husband who has since died; and the lands deeded to The Pierson Company, the servient tenement, were in 1947 conveyed by the company to Ellis. In 1954 Ellis erected, in violation of the covenant, a store 25.30 feet high, extending right up to plaintiff's property line, thus blocking off the lower half of two windows on the second floor of the building on plaintiff's parcel, which windows are practically on the same line. There is no dispute upon the appeal but that this is a valid covenant, enforceable by the plaintiff against Ellis and breached by Ellis in that it failed to leave an air space four feet wide extending upward from a plane fifteen feet above the grade of the curb referred to. The dispute here is simply what should be the remedy.
The principal question of law raised by this dispute is whether plaintiff is entitled to a mandatory injunction. No plaintiff is entitled to such an injunction as of course, merely because of a violation of a covenant affecting real property, for which, to be sure, there is no adequate remedy at law. The allowance of injunctive relief is a discretionary matter, in that the court may be called upon to give or withhold relief depending upon variables, namely, the circumstances of the case.
One such circumstance affecting the decision in cases like the present would arise if Ellis' violation of the covenant had been wanton in character. Scuorzo v. Infantino , 104 N.J. Eq. 520, 523 (Ch. 1929); cf. 4 Restatement, Torts 710, 711 (1939). But there is no claim of that here. On the
contrary, at the time of the violation Ellis apparently had no knowledge of the covenant, except that imposed by the records. For even though its president had had actual knowledge of it in 1947 when Ellis acquired title to the property, he testified he had forgotten about the covenant until after the completion of the building, when it was called to his attention by Ellis' attorney in connection with a mortgage Ellis placed on the property.
A second such circumstance is laches. However, we shall assume that the plaintiff is not chargeable therewith. She never learned of the covenant until Ellis' building was completed, when Ellis' attorney called it to her attention (presumably in order to secure from her a release of the covenant). Nor does she have constructive notice of the covenant by virtue of the recording act, N.J.S.A. 46:21-1, since the covenant does not appear in her chain of title. Glorieux v. Lighthipe , 88 N.J.L. 199 (E. & A. 1915); Annotation, 16 A.L.R. 1013; 1 Thompson, Real Property , § 383 (1940); 8 Id. § 4453; but cf. 4 American Law of Property , § 17.24 (see also § 17.17) (1954); Higbee Fishing Club v. Atlantic City Electric Co. , 78 N.J. Eq. 434 (Ch. 1911); William Dahm Realty Corp. v. Cardel , 128 N.J. Eq. 222, 227 (Ch. 1940); Ingling v. Public Service Elec. & Gas Co. , 10 N.J. Super. 1, 9 (App. Div. 1950), referring to the "Telephone Company grant." However at three points of time she did observe the erection of the building which violated the covenant: when the offending wall was being laid, when it was partially completed, and when it was finished. Indeed, when the wall was partly up, she was told by some man who (in her words) "had something to do with the building," that the wall was to be 25 feet high, which, as she feared at the time, was of a ...