Plaintiffs, husband and wife, seek a mandatory injunction to compel defendants Willcox, likewise husband and wife, and their builder Robert E. Ritterhoff, to remove 1.9 feet of a covered porch on the second floor of the Willcox home located on Lot 16, Block 15A, in the Borough of Avalon.
The right to this relief is founded upon a restrictive covenant which reads as follows:
"No building shall be erected which will be closer than twenty-seven feet (27') from the south curb line of 15th Street of the Borough of Avalon."
This covenant was created by David J. Kerr and his wife when they were the common owners and developers of the land in the area involved in this suit. It resulted from the request of plaintiffs when they acquired title to Lot 6, Block 15A in the development. Their agreement of sale stated that seller agreed to create the covenant in order to protect buyers' view of the ocean.
Defendants Willcox acquired Lot 16, Block 15A, situate about 200 feet east of plaintiffs' lands, and therefore lying between plaintiffs' house and the ocean, about two years after plaintiffs' purchase.
According to Mr. Kerr, the purpose of the restriction was not only to protect the view toward the ocean, but also to establish uniformity of and conformity with the set-back.
Defendants Willcox readily admit that measured horizontally their porch extends 1.9 feet within the 27 feet referred to in the covenant. They also admit that they had knowledge of the covenant at the time they acquired title to their premises. They urge, however, that alternatively there is no violation of the covenant, or that this court should deny the relief sought, because (1) the set-back line of 27 feet is the same as that contained in the zoning ordinance; that the covenant was made only to insure conformance with the zoning ordinance and therefore should be construed as the zoning ordinance which permits projections into the space up to two feet; (2) that measuring the leading edge of the floor of the porch on a diagonal line to the curb there is more than 27 feet; (3) plaintiffs are not entitled to relief because this small projection offers practically no obstruction to their view of the ocean and they suffer no harm or damage from its maintenance; (4) the language of the covenant should be construed to except porches from the prohibited space.
I disagree. Apart from the fact that Mr. Kerr, the builder, testified that the number of feet of set-back was selected by him somewhat arbitrarily and not because that was the set-back required by the zoning ordinance (indeed, he testified he thought the zoning ordinance set-back was only 25 feet) the covenant must be interpreted from its own terms and from the facts and circumstances surrounding its creation. Javna v. D.J. Fredricks, Inc., 41 N.J. Super. 353, 358 (App. Div. 1956). The surrounding circumstances disclose no factual or other basis by which one is persuaded to construe the covenant as if it were the zoning ordinance.
Apart from the fact that defendants have not presented any authority for measuring the distance on a diagonal line, such method of measurement is unrealistic and lacks support by any fact in the case. To measure in the fashion suggested by defendants would make the validity of such obstructions depend on their height from the ground, rather than on whether the setback space is invaded. The suggestion therefore is artificial and unreasonable.
Nor can I accept the view that plaintiffs are not entitled to the enforcement of the terms of the covenant merely because allegedly they suffer no injury. Plaintiffs have testified that the projection of 1.9 feet, from their personal observations, has diminished their view to the ocean. In Supplee v. Cohen, 80 N.J. Eq. 83, 88 (Ch. 1912), affirmed 81 N.J. Eq. 500 (E. & A. 1913), defendants likewise ...