[60 NJSuper Page 411] Plaintiff seeks a mandatory injunction by her first count to force the defendants to construct sidewalks in front of their homes, and by her second count to have them remove certain obstructions from the area of the public street between the curb line and the side line of the street.
Plaintiff, with her husband, has for the past 23 years resided at 423 Peyton Avenue in the Borough of Haddonfield, and the defendants reside within a one- or two-block area on Woodland Avenue and Elm Avenue, and one defendant is the owner of a vacant lot situate at the southeasterly corner of Elm Avenue and Linden Avenue, three blocks from the residence of the plaintiff.
All the lands involved, as well as a large portion of this section of the borough, were owned by the West Haddonfield Land Company which filed three separate plans of the development thereof under dates of August 18, 1893, December 20, 1897 and September 1, 1899, and thereafter, by conveyances to either individuals or The Real Estate and Investment Company and dating from May 6, 1903 to September 22, 1914, the area covered by the lots concerned was conveyed, each conveyance containing certain conditions or restrictions which, as quoting from the deed in the plaintiff's chain of title, read as follows:
"Subject nevertheless to certain easements conditions and restrictions under which this conveyance is made by the said party of the first part and accepted by the said party of the second part for itself its successors and assigns in consideration of this conveyance do hereby covenant and agree to and with the said party of the first part its successors and assigns to do keep and perform that is to say That neither the said party of the second part nor its successors or assigns shall or will erect on any one of the lots herein conveyed any dwelling house which shall cost less than the sum of Twenty five hundred Dollars on Haddon Avenue nor less than the sum of Two Thousand on Peyton Avenue nor less than the sum of Eighteen hundred Dollars on Woodland Avenue nor less than the sum of Fifteen hundred Dollars on Elm or Estaugh Avenues that no building of any description whatever shall at anytime hereafter be erected within twenty five feet of the front fence line of lots on Peyton Elm and Estaugh Avenues and within thirty feet of the front fence line of lots on Woodland and Haddon Avenues being the front line of said lot excepting piazza veranda portico or other architectural embellishments attached thereto but that said space between said house line and street line shall be always left open and clear for the purpose of light and air that no cesspool shall be located nearer than ten feet from the division line of adjoining lots all cesspools shall be dug not more than four feet and shall be cemented sides and bottom and kept water tight and
odorless that no slaughter houses bone boiling establishments pig pen or anything of an offensive character shall be erected kept or maintained upon said premises and that the said party of the second part will construct and maintain a good sidewalk of a width not less than five feet on the street or streets bounding the land herein conveyed and shall also erect and maintain at their own proper cost and expense all division fences between land of the said party of the second part and land of the said party of the first part so long as the same shall be owned by the said party of the first part and it is further specially covenanted and agreed for the mutual benefit of the peace and comfort of the grantor and grantees of the said party of the first part as well as the good order of the community that the said party of the second part its successors shall not at anytime use or occupy the said premises or any buildings to be erected thereon or allow the same to be used or occupied for the manufacture storage or sale of any spirituous vinous fermented or other intoxicating liquors."
By mesne conveyances the lands covered by the above covenant have been conveyed to the respective parties. Since that time houses have been constructed on all the lands except that owned by Arthur W. John and Margaret N. John at the aforesaid southeasterly corner of Elm Avenue and Linden Avenue. It appears from the testimony of Robert F. Sampson, a title abstracter, that practically all the lots in the area covered by the maps upon which residences have been constructed contain the same restrictions as recited above and that all of the lands owned by the original developing company have been conveyed out.
It appears that except for the lands owned by the defendants, some lots on the northwesterly side of Elm Avenue, and two lots on the far end of Woodland Avenue sidewalks have been constructed.
Some of the defendants were called to testify and have acknowledged that they have assumed to improve the area between the curb line and the street line by the planting of grass, trees, shrubs and bushes, and that persons walking along the area in front of their homes are required to walk in the street beyond the curb. There is no denial on the part of the defendants that the covenant, at least similar to the one recited in full, is contained in their chain of title.
Plaintiff contends that by reason of the covenant's being placed in all the deeds for the whole tract covered by the maps, a "neighborhood scheme" has been established and, except for the area owned by these defendants and a few others, this scheme has been followed by the respective owners, not only in the covenants dealing with minimum price, set-backs, construction of cesspools, and establishment of obnoxious or offensive businesses, but that all other lot owners have also constructed and maintained sidewalks, and that no manufacture, storage or sale of any intoxicating liquors has been made on any of the premises covered by the maps; and that, therefore, these defendants should be required, in furtherance of this "neighborhood scheme," to install sidewalks in compliance with the covenant, and also that by reason of the various obstructions of the area between the curb and the street line the defendants should be required to remove the same to permit passage by the walking public upon the area designated to be within the public street.
Defendants contend that the portion of the covenant which the plaintiff is attempting to enforce is, by its language, a personal covenant enforceable only against the original grantee of the respective lands or, in the alternative, is an affirmative covenant, the enforcement of which our courts will not require even upon the assumption that a "neighborhood scheme" has been shown, which they deny; and lastly, that the plaintiff has no standing as a private citizen to bring an action for ...