On appeal from the Superior Court, Chancery Division, Monmouth County
Gaulkin, Deighan and Stern. The opinion of the court was delivered by Gaulkin, J.A.D.
[211 NJSuper Page 647] Plaintiffs Walter Blaine (Blaine) and Herbert R. Porter, Jr. (Porter) were awarded judgment requiring defendant William J. Ritger (Ritger) to remove his beachfront house, located in the Borough of Sea Girt, "to a spot where no part of it is closer
than seventy-five (75) feet to the westerly line of Ocean Avenue." That relief was granted upon the trial judge's finding that Ritger had built his house in violation of a restriction imposed as part of a common scheme for the benefit of, and enforceable by, his neighbors. Ritger appeals.
Each of the parties owns property which fronts, to the east, on a paper street variously known as Ocean Avenue, Atlantic Avenue or the Boulevard, in Sea Girt. Since that street has never been improved, the lots actually front on the Atlantic Ocean. The properties are part of a tract acquired in 1875 by the Sea Girt Land Improvement Company (Company), which mapped the land for residential development. The prime portion of the tract consisted of the lots fronting on the Atlantic Ocean. In a map filed by the Company those were designated, from south to north, as Lots 1 through 30 in Block 7; each of the lots had a frontage of 50 feet and a depth of 200 feet, with the exception of lots 15 and 16, which were 62.5 feet wide. To the west a large park area was reserved. That area, known as Crescent Park, has been maintained to date in its natural state; private access to the Block 7 lots is reserved to their owners through that Park.
In 1875 and 1876, the Company conveyed out Lots 1, 2, 4, 5, 6, 9, 10, 11, 12, and 13 by deeds, all of which contained the following setback restriction:
that the line of any building erected thereon shall be distant not less than 25 feet from the Boulevard in front of said lots.
Lots 7, 8, 20 and 21 were conveyed in 1875 by deeds which did not contain any setback restriction.
In 1877 the Company filed an amended map of the tract, which moved the paper street 50 feet to the east. That amendment resulted in the expansion of the unsold lots to a depth of 250 feet. Then, in 1878, the Company entered into an agreement to convey an additional 50 feet to each of the prior purchasers. The Company covenanted with those prior purchasers that it
will permit no houses or buildings to be erected or built in front of said Crescent Park on a line further east than those already erected and built by Elliston P. Morris [ i.e., Lots 20 and 21] and Yarnall and Cooper [ i.e., Lots 7 and 8] and will make all conveyances of said lots in front of said Crescent Park and between it and said Atlantic Boulevard subject to a covenant restricting the owners thereof to said building line.
Although Lots 7, 8, 20 and 21 had not been burdened by any setback restriction in the 1875 deeds, the 1879 Company deeds which conveyed the additional 50 foot depths recited those grantees' covenants
that he or they shall never build on said premises within eighty feet from the front line thereof.
Based on that history, the trial judge properly concluded that as of 1879 all of the previously conveyed lots, other than lots 7, 8, 20 and 21, were burdened with a 75 foot setback from the new westerly line of Atlantic (Ocean) Avenue, i.e., 25 feet from the old westerly line; that lots 7, 8, 20 and 21 were burdened with an 80 foot setback from the new westerly line; and that the Company had covenanted to restrict building of houses on the unsold lots any further east than those already built on lots 7, 8, 20 and 21. The clear purpose of the restrictions was, as the trial judge found, to preserve an unobstructed view for each of the owners over the ocean to the north and to the south.
The Company conveyed all of its remaining lots by 1890. All of the deeds but two contained ...