On appeal from Superior Court, Chancery Division, Cape May County.
Michels, Kole and Ard. The opinion of the court was delivered by Kole, J.A.D.
On March 20, 1979 plaintiff filed a verified complaint in which he alleged that his neighbors, defendants Lees, were building a house on their land, adjacent to that of plaintiff, in violation of a covenant in the deed to defendants requiring a setback of 25 feet "from the 14th Street property line." In essence, plaintiff alleged that the common grantor of plaintiff and defendants, Loutom Enterprises, Inc. (Loutom), had placed the covenant in defendants' deed in order to protect plaintiff's view of the ocean and thus the covenant was enforceable by plaintiff.*fn1 Pending trial, on March 20, 1979 a temporary restraint, and on May 9, 1979 a preliminary injunction, were issued against defendants' performing any further work on their property within 25 feet of the front property line.
After a nonjury trial the judge ruled, in a letter opinion, that the covenant in defendants' deed could not be enforced by plaintiff and that a subsequent quitclaim deed from the common grantor Loutom to defendants purporting to extinguish or remove the covenant was valid. An accordant judgment was entered in May 1980. After plaintiff moved for amended findings of fact and conclusions of law or a new trial, the judge issued another letter opinion. In that opinion he stated that he had earlier erroneously given defendants the benefit of the statute of frauds despite their failure to plead this defense, but that nonetheless he had reached the correct ultimate conclusion. An order was entered denying plaintiff's motion and reaffirming the earlier judgment. This appeal followed.
It is necessary to discuss the proofs upon which the judge predicated his findings and determination adverse to plaintiff.
Plaintiff and defendants own contiguous properties on 14th Street in Avalon. Defendants' property is between that of
plaintiff and the ocean. Both plaintiff and defendants purchased their property from Loutom.
Plaintiff testified that before purchasing his land, which already had a house on it, he asked John Dunne, the president of Loutom, about the possibility that construction on the adjoining vacant lot might obstruct his view of the ocean. However, Dunne assured him that there would be a setback of 25 feet since Dunne owned the lot and was going to build for any purchaser thereof. Plaintiff's purchase contract was dated July 9, 1978.
Plaintiff closed title on his property on July 29, 1978. The purchase price was $150,000. According to plaintiff, on the morning of the closing he called Dunne and asked for a letter substantiating the agreement to impose a setback of 25 feet on development of the adjoining property. Dunne agreed. However, although at the closing he did not have a letter, he informed plaintiff not to "worry about it, it will be in the deed."
Dunne did not testify at trial, but his deposition was received into evidence and portions were read into the record. He stated that he had informed plaintiff that
But an unsworn statement signed by Dunne and accepted in evidence stated that during the course of sale negotiations with plaintiff, reference was made to the imposition of a restriction on the adjacent property (Lot 16) providing that the house to be built on Lot 16 was to be set back 25 feet from the 14th Street property line.
On July 16, 1978 defendants entered into a contract to purchase Lot 16, the adjoining lot, from Loutom for $75,000. The contract did not provide for a setback requirement. Defendant James Lees testified that prior to the closing of title under his contract he never had any discussion with Dunne or with plaintiff about any setback requirement. The closing of title on
defendants' property took place on August 19, 1978. The deed provided that Loutom would be the contractor on the house to be ...