
    Seymour v. McDonald and others.
    Jany. 25, 26 ;
    March 19, 1847.
    Equity has jurisdiction to restrain by injunction erections on servient lands, in violation of an easement or right of enjoyment in respect of such lands, attached or belonging to adjoining premises.
    A. owning two adjoining rural building lots, bounding on a river, and erecting on one a family mansion for his own use, sold the other to B. for the like purpose, with a covenant by B. in the deed to him, that he would not use the lot in a way or for any business which might be in any manner offensive to the occupant of the adjoining property, or that would tend to deteriorate or lessen its value ; and would not use it for a stone quarry. B. soon after leased to C. the right to build a wharf on B.’s river front, and to make a railway to the same across B.’s lot, in order that C. could use the railway and wharf, to transport and load into vessels, stone from a large quarry of C. situate some distance back of the lots in question. C. proceeded to build the railway and wharf.
    
      Held, that the railway and wharf were within the prohibition of the covenants in the deed, and their further erection was enjoined.
    The erection of the wharf, was held to be of itself a violation of the covenant, because of its affording access, and attracting to the shore, nocturnal debauchees rambling by water from a neighboring city.
    This was a motion to dissolve an injunction. The bill was filed by Charles H. Seymour, against Angus McDonald, together with Charles J. Richards, Alexander D. Wyckoff, Edward Yan Wart and William McCann. The four last named defendants put in a joint answer, and McDonald answered separately.
    The motion was made on the answers and on affidavits. Affidavits were also annexed to the bill, which waived an answer upon oath.
    The facts material to the motion, were as follows: in May, 1846, the complainant was seised in fee of and in two lots of ground, on the margin of the East river, opposite the upper part of the city of New York, situate in the town of Newtown in the county of Queens, and known as numbers six and nine on a map of the Long Island Farms Property then lately owned by the city of New York. The lot number six, is three hundred feet in breadth on the road, and extends back westwardly to the East river by parallel lines, a little over four hundred feet.
    The complainant bought it for the purpose of erecting on it a private residence for himself and his family, with suitable embellishments of the grounds around it. During the spring of 1846, he entered into contracts for the building of a superior cottage dwelling on lot number six, for his private residence; and before or about the twelfth of May, commenced the building and the improvement of the grounds.
    About that time, the defendant McDonald, applied to the complainant, to purchase a part of lot six, stating that he wanted it for his own private residence. In the negotiation that ensued, the complainant stated to McDonald the object of those who had bought there, to be, to have their residences free from annoyances and the intrusion of strangers ; and that the lots along the river were peculiary and admirably adapted for that purpose, in all which McDonald coincided. The bill alleged that he said he wished to buy for a residence for himself and family, and for no other purpose, and that the complainant sold the land to him to be occupied for that purpose only. McDonald denied that he expressed at any time that he wanted the land for no other purpose, although he did state he wanted it Tor his own private residence.
    McDonald being unprepared to pay any of the price, the complainant agreed to let the whole price remain on bond and mortgage, McDonald agreeing on his part, to build on the premises and finish within fifteen months, a private residence for his own use.
    The result of the negotiations and agreement was, that on the 12th day of May, 1846, the complainant, for the price "of twelve hundred and fifty dollars, conveyed in fee to McDonald, the south part of the lot number six, such part being seventy-five feet in width and extending from the road to the river; subject to the covenants in the deed contained on the part of McDonald, which were in the words following, viz:
    “ And the said party of the second part for himself, his heirs, executors, administrators or assigns, hereby covenants and agrees to, and with the said Charles H. Seymour, his heirs and assigns, as a covenant running with the land hereby granted and conveyed or intended so to be, that the said party of the second part, his heirs, executors, administrators or assigns, shall not and will not, at any time hereafter build, erect, suffer or permit, any nuisance or any business, trade, building, manufactory or calling, that is usually or generally considered a nuisance, upon or about the hereby granted lot of land or premises or any part thereof, and shall not and will not, at any time hereafter, build, erect, carry, or suffer or permit to be built, erected or carried on, upon said lot, piece or parcel of land, or any part thereof, any manufactory, mill or mills, factory or factories, building, trade, business, occupation or calling whatever, or occupy or use the said hereby granted premises or any part thereof, in any way or manner that shall or may be in any manner offensive to the neighboring inhabitants or the occupants of the adjoining property, or detrimental or injurious in any way to the adjoining property, or that will deteriorate or lessen or have a tendency to deteriorate or lessen the value of the adjoining property, or be a nuisance, or be considered generally by the neighbors as a nuisance; and will not use said land as a quarry, or quarry any stone therefrom, otherwise than as may be necessary to grade or improve the same; arid further, that the said party of the second part his executors, administrators and assigns shall and will within the space of fifteen months from the date hereof, erect and maintain upon said lot of ground hereby granted and conveyed, a good and substantial dwelling house or cottage, and occupy the same or cause the same to be occupied as a dwelling house.” The deed was executed by McDonald, as well as the grantor, and was recorded on the 21st day of May, 1846. The complainant received McDonald’s bond and mortgage on the premises conveyed, to secure the whole purchase money, payable in eight years from their date, with interest at six per cent. In August, 1846, the complainant became seised of the southerly half of lot number five, which half adjoins, on the north, the portion of lot six, which he retained.
    On the eighth of September, 1846, McDonald entered into an agreement, under seal, with all the other defendants, except McCann, whereby he leased to them the privilege of laying down a railway, or passage way for one team, on the southerly side of the land so bought from the complainant, extending from the road to the river } together with the privilege of building a dock or wharf on the front of M’Donald’s land, for the purpose of loading stone, to be about forty feet wide, and of sufficient depth for their purposes. The privilege to last for one or three years, at the rate of one hundred dollars a year. The lessees to be allowed to slope the bank of the river side, so as to fill their dock with earth; and at the end of the term, to take away their crane and railway.
    The lessees employed' McCann as contractor, and commenced sloping the bank, building the dock, and erecting the railway from the river to the road. Their avowed object was to use these erections, for the purpose of transporting and loading stone from their quarries, on the east side of the road, to and on board of vessels at the dock.
    The complainant forbade them from proceeding. He insisted that the erections in progress were, and would be a nuisance; would deteriorate the value of his adjoining property, as a private residence, and irreparably injure and destroy its character as such ; and would destroy its privacy, as well as that of the river shore. The wharf is in a direct range with the southerly and westerly windows and the piazza, of the house he has just built, and open to view from them all.
    The bill stated other injurious effects as likely to ensue, some of which are mentioned in the opinion of the court; and that the erections are in violation of the covenants in the deed to McDonald.
    McDonald’s lessees, it appeared, had contracted with the go. vernment of the United States to supply granite stone, to the amount of $29,550, to the dry dock, erecting at the navy yard in Brooklyn, and obtained the quarry some distance east of the road, and the lease from McDonald, in order to perform their contract. They were bound in a heavy penalty, to complete it within a short period. The answers denied that the erections were or could be a nuisance, or injurious to the adjoining property, or to the complainant’s residence, or were in any manner within the prohibitions in the deed. They also stated various other annoyances, alleged to be more serious, to which the complainant’s premises were constantly subject, independent of McDonald’s lot, and the proceedings thereon.
    
      R. H. Ogden, for the defendant, McDonald.
    
      M. M. Davidson, for the other defendants.
    
      E. Sandford, for all the defendants.
    
      F. Tillou and Jon. Miller, for the complainant.
   The Vice-Chancellor.

I have no doubt, after reading McDonald’s answer, that the lot in question was sold to him on the distinct understanding, that it was to be used for a private residence only.

Although he may not have used the word only, or said in express terms that he would not use it for any other purpose ; such was the necessary implication from what he admits to have been stated by the complainant, and assented to by himself, in connection with his own allegations.

The other defendants, however, were not parties to this part of the transaction ; and I will look at the terms of the deed to McDonald. The latter was not to use the lot in a way, or for any business which might be in any manner offensive to the occupant of the adjoining property, or that would tend to deteriorate or lessen its value ; and he was not to use it as a stone quarry.

The complainant was then preparing the adjoining property for a private residence, by the erection of a cottage, and by corresponding embellishments of the lot on which it was situated. The size of the defendant’s lot, indicated that it was intended for a similar occupation. The inhibition of a stone quarry, was a sufficient indication to Richards and others, that business of that and the like nature was not to be conducted upon the land conveyed to McDonald.

In the face of these covenants in the deed, the defendants are proceeding, not to make this land a stone quarry, but to make it the outlet of a larger stone quarry, lying in its rear. They propose to “ dump” the stone from Richards & Go’s, quarries, and load them into vessels, at a wharf directly in range of the complainant’s piazza, and less than two hundred feet distant from his windows. It is scarcely possible that the congregation of men and animals, and the dust and noise, which such a business will necessarily produce, will be inoffensive to the occupants of the adjacent cottage.

Whether they ought to object is not the question. It suffices, that the complainant, owning both lots, and designing one for a retired country residence, refused to sell the other, except with such a prohibition.

Again, it is abundantly shown, that the erection of the dock, will lead to consequences still more offensive to quiet and orderly people, who may reside in the complainant’s cottage, and which may be well classed as a nuisance. It is said the natural bank of the East river affords equal, and even greater facilities for the landing of nocturnal debauchees on these lots, than will be afforded by a wharf. But the bank does not invite such landing, and the experience of the neighbors shows, that the wharves are chiefly used; either as enabling those parties to make their boats fast, or as presenting a point of attraction, and holding out inducements for them to go ashore. And the erection of a wharf, or any thing else, which, of itself innocent, invites nuisances or grossly offensive practices, and from its propinquity to the city will inevitably lead to such practices ; is in my view, clearly within the prohibitions of McDonald’s conveyance.

I do not feel warranted in dissolving the injunction upon the answers and affidavits. The jurisdiction of the court is unquestionable. (Hills v. Miller, 3 Paige, 254; Trustees of Watertown v. Cowen & Bagg, 4 ibid. 510; Mann v. Stephens, 10 London Jurist Rep. 650, before Vice Ch. of England, July 28, 1846.1

The motion to dissolve the injunction must be denied, with ten dollars costs. 
      
      
         Now reported in 15 Simons, 377.
     