author: Grey, V. C.

text:
    Aaron M. Oliphant et al. v. William Richman.
    [Filed February 1st, 1904.]
    .1. A lease of land at the edge of a mill pond, “for the purpose of building and maintaining an ice house ihereon,” gives the lessee no.right to cut ice on the mill pond.

      2. The lessor's permitting the lessee to take ice from the pond gives the lessee a mere license, revocable at the lessor’s pleasure.
    2. On application for injunction to restrain trespass, it must be shown that the complainant’s right or title is settled, and that he will suffer irreparable damage unless relief be granted.
    On application for a preliminar}'- injunction on bill, answer and alfid avits.

      Mr. Jonathan IF. Acton, for the complainants.

      Mr. William T. Hilliard, for the defendant.
   Grey, V. C.

(orally).

The bill is filed only to restrain the defendant from cutting and removing ice on a mill pond in the county of Salem. It contains a copy of a lease made by the complainant to the defendant of a piece of land twenty feet wide by twenty-four feet long, the description of which is as follows: “A certain lot of .land on the east side of the road leading from Sharptown to Salem county almshouse, at the edge of the mill pond, and being twenty by twenty-four feet, for the term of ten years, with the privilege of renewal for the purpose of building and maintaining an ice house thereon." There is a further'clause in the lease; which is in these words: “That the building to be erected on said ground shall not. be used for any other purpose than as an ice house, and if used for any other purpose than as an ice house) then this lease to terminate and become void.” The complainants allege that the defendant has cut, or is about to cut, ice from the complainants' mill pond, near the leased premises.

The defendant has answered. lie admits the lease to have been made as stated in the bill of complaint or the copy annexed, but lie says that the lease was intended by the parties to express not only a grant of land but also of the privilege to use the ice from the mill pond, outside of the granted premises, for the purpose of filling the ice house to be built on the land. In addition affidavits are submitted to show and the answer alleges that it lias been the custom of the defendant, subsequently to the making of the lease from a period near the date of the lease (which was December 29th, 1896) until the past'year, to fill his ice house from the complainants’ pond; that the complainants made objection last year, and since that time the right to fill the defendant’s house from the ice on the mill pond has been the subject of difficulty and disagreement between the' parties.

It seems to me this matter is controlled by fundamental principles. The lease, undisputed by both parties, expresses no grant of any right to cut ice from the complainants’ mill pond. Its terms are perfectly clear, a grant of a piece of land lying at the edge but including no part of the mill pond, with limitations upon the right of the grantee or lessee to use the demised land for any purpose other than an ice house.

That is the meaning and extent of the -words used in the lease and no greater effect can be ascribed to it.

There is neither ambiguity in the expressions of the lease nor any doubt of the extent of the lands or privileges granted. If such were the case the acts of the parties in taking and using the premises might be invoked to satisfy the doubts and .interpret the real meaning of the grant.

The fact that the lessee was permitted to take ice from the pond must necessarily, therefore, have been a mere license — that is, the owner of the pond permitted the lessee to take ice from his mill pond just as he might have permitted him to take any other benefit. The mill pond belongs to the lessor. It is his property. He has a right to allow'- others to use it as long as he chooses to do so and to stop them whenever he wishes. The lessee, in cutting ice for a number of years from the pond, accepted courtesies extended but acquired no rights. The fact that a man permits another to irse his lands once or twice, or twenty times, creates no obligation upon the owner to continue so to do.

If the complainant permitted the defendant to use the-mill pond for twenty years, he could not be obliged to permit him to use it for twenty-one, for the reason that a person who accepts a benefit or courtesy in another’s lands or waters, extended to him by the free choice of the owner, does not exercise his privilege in a hostile way, asserting- title or claim, but in acknowledgment of the owner’s title. The defendant having accepted the extension of a' courtesy by the voluntary action of the lessor, he cannot afterwards set it up to bind the lessor to continue to extend it beyond the time when he chooses to revoke it.

In these applications for injunction there are two elements which must be shown. One is the settled right or title of the complainant, the other is that this right in the thing in dispute will be irreparably damaged if the relief be not granted.

I think it is entirely clear that the first element in the case, as to the established right of the complainant, is settled, and settled adversely to the defendant’s claim.

As to the other element. Irreparable damage does not mean that the complainant must show that all his financial transactions will be ruined unless the relief sought is granted. It means that with reference to the particular right or property referred to in the bill of complaint the complainant will be irreparably deprived of it unless the relief sought is granted.

The situation is that the defendant claims the right and insists upon the exercise of it to go upon the complainants’ land and use it as he (the defendant) chooses, against the complainants’ opposition. There is no limitation apparently put upon the defendant’s exercise of that privilege. He holds the ice house near the complainants’ pond, and he claims the right against the complainants’ prohibition to go upon the complainants’ pond, cut ice and fill his own ice house.

I do not quite see why the limitation should be to the filling of the ice house, because, as I have already determined, the grant of the piece of land was for the pru-pose of erecting an ice house, and it does not convey the right to fill that house from the ice on the pond. If the defendant has a right to cut ice on the pond at all, he has a right to* cut all the ice. If he does not choose to exercise it that is another matter, but nothing defines any limitation confining him to the quantity which will fill the jce house.

Tf the defendant, carrying out his claim, cuts ice from the pond this A’ear, lie will have the same right to out it next year. The complainant, to get any remed}1, would thus be compelled lo bring many* damage suits. It is quite obvious that the complainants’ right being clearly established, they ought to have the protection of this court from such vexatious and repeated suits, thus settling the whole dispute in one litigation.

The argument advanced by the defendant’s counsel that the complainants may get ice somewhere else on the pond than in the neighborhood of the defendant’s ice house, it seems to me, is not pertinent at all. An owner is not called upon to submit to losing a portion of his propert}', because he can conveniently or profitably use oilier portions. He has an absolute right to determine, even unreasonably, whether he will keep it or part with it, and under what conditions he will permit another to enjoy it. It is obvious enough that no one can rightfully say to an owner, “You ought to permit me to use and enjoy this portion of your propeidy, because in another part of it you can get all the benefit from it which you need.” Such a proposition cannot be maintained.

I think, therefore, that the complainants have shown not only an established right hut also, when properly understood, a threatened condition of irreparable damage. A preliminary injunction ought to go according to the prayer of the bill.


source: Caselaw Access Project

license: Public Domain

text:
    Atlantic City v. The New Auditorium Pier Company.
    [Filed March 16th, 1904.]
    1. Many owners o£ beach Iront lands covenanted, under seal, that Atlantic City might locate a boardwalk across their several ownerships at the ocean edge, with aiding covenants against the erection o£ buildings on its ocean side in order to secure light, air and view of the ocean' from the boardwalk. Possession of the loons was given to the city, and the boardwalk was visibly in process of construction, in large size and at great expense, when one of the covenanters conveyed his lot on which the boardwalk had been erected to a grantee, who recorded his deed before the covenant with the city for the way was recorded. This grantee and his assigns accepted and used the boardwalk improvement and its privilege of ocean view secured by the aiding covenants of the deed for several years, but afterwards attempted to erect a building on the ocean side of the boardwalk, which was in breach of those covenants. — Held, the open and notorious possession of the way and the construction thereon of a visible and peculiar improvement (the boardwalk) was notice to the grantees who first recorded their deed of the right of the \city to the way for a boardwalk, and of the aiding covenant against building oceanward therefrom, and that the erection of buildings in breach of the latter covenant will be enjoined.
    2. -If the deed to the city failed to pass an estate in the right of way for want of words of grant, it yet operated as a covenant between the signers and the city that each owner would surrender to the city his portion of the way and be bound not to build on the ocean side of the boardwalk, in consideration that the city would erect the boardwalk improvement. AYhen, under such a covenant, possession of the way has been delivered to the city, and it has erected the boardwalk improvement, which has been accepted and used by the signers of the covenant for several years, a grantee of one of the covenantors will be restrained if he attempts to build on the ocean side of the boardwalk, in breach of one of the covenants securing light, air and view from the boardwalk.
    3. Such a covenant is also, as between the signers thereof, a general scheme of public improvement, by which each surrenders his portion of the way in consideration of the surrender made by the other signers of their portions, for the benefit of the public and of themselves as owners of land fronting on the right of way. Any owner who so builds on the ocean side of the boardwalk as to shut out the view of the sea therefrom, may be restrained at the suit of any other owner who has contributed land to the common purpose, unless the building erected is a pier within the meaning of the proviso of that covenant.
    1. That proviso authorizes an owner to erect but one pier. AYhen that has been done, no lateral additions thereto can afterwards be made.
    On bill, anstver and proofs on final bearing.
    The bill of complaint in this canso is filed by the city of Atlantic City to restrain the defendant from erecting a lateral wooden addition to its pier, already built oceanward from the Atlantic Gityr boardwalk. The bill refers to the statutes and ordinances authorizing- Atlantic City to reconstruct its boardwalk, and particularly sets forth what it claims was a dedication to public uses of a boardwalk or promenade at the edge of the ocean, running along the front of the city of the width of sixty feet, by a deed dated April 30th, 1896, made and executed by numerous owners of land which the route of the boardwalk crosses (among others by Richard Loper, an antecedent holder of the lands on which the defendant company is about to construct the lateral addition to its pier); a copy of this deed of dedication is annexed to the bill of complaint and made part thereof. •
    The defendant’s answer with respect to this dedicating covenant is as follows:
    “It admits that an agreement, bearing date April 30th, 189G, was executed by certain of the owners of said beach front property, which said agreement was recorded on June 16th, 1806, as in the bill of complaint set forth; but as to the contents and dates of the execution and acknowledgment of said agreement and of its delivery, or whether the agreement annexed to said bill is a true copy thereof, this defendant is not informed, and leaves the complainant to make such proof thereof as it may be advised.”
    The defendant denies that by the agreement of April 30 th, 1896, the complainant received any dedication of the boardwalk strip, or that by that agreement the complainant received such a dedication that none of the parties executing it can lawfully erect or place'on the boardwalk strip itself, or on the ocean side thereof, any buildings or structures except said boardwalk and an iron or steel pier at least one thousand feet in length; and insists that no portion of the land in possession of the defendant company has ever been dedicated; and that none of that land, is subject to any covenant or agreement, that no building other than an iron or steel pier one thousand feet in length shall be placed thereon; and denies that it is the complainant’s duty, representing the public, to enforce any of the provisions contained in the agreement of April 30th, 1896, against the defendant’s land.
    The defendant’s answer admits that the defendant’s title and possession came from Loper (one of the signers of the covenant of April 30tli, 1896) by the chain of title alleged in the complainant’s bill; but it denies that the complainant’s right in the lands described as the boardwalk strip had vested at the time when Loper conveyed to the defendant’s grantor, and insists that before the covenant of April 30th, 1896, made by Loper and others to and with Atlantic City, went into operation, Loper had conveyed the premises in question to the defendant’s grantor, and that the said agreement of April 30th, 1896, was of no force or effect, because it was not (as to Loper) delivered and accepted until after the deed to the defendant’s grantors (under which the defendant now claims) had been made, and for this reason the defendant claims that its grantors “took said lands free and clear of any covenants or restrictions contained or'pretended to be contained in said covenant agreement of April 30th, 1896.”
    The answer admits that the boardwalk mentioned in the agreement of April 30th, 1896, has been constructed and that it is now in constant use by the public. It denies that at the time of the sale by Loper to its grantors the complainant was in possession of the strip sixty feet in width where the same crosses the premises described in said conveyance, or that it had erected thereon the boardwalk now used. It admits that by named intermediate conveyances the defendant company has come to be the lessee and in possession of the locus in quo. It admits that it lias driven wooden pilings on those premises, and that it intends to erect buildings thereon, and claims the right so to do, and that the place in which it is driving said wooden pilings is upon lands conveyed to Loper by the State of New Jersey through its riparian commissioners, and claims that said lands are not subject to any of the covenants contained in the agreement of April 30th, 1896. It contends that it has the right to use the property leased by it as it shall see fit. It admits that its auditorium building on' its pier has been connected with the boardwalk by a platform which has been in existence for some years. It denies that the erection of its wooden pilings and the construction of a building thereon on the ocean side of the boardwalk are any violation of any of the covenants mentioned in the agreement of April 30th, 1896, or a violation of any general scheme of the holders of beach front land for the improvement of the ocean front, and denies the right of the public to interfere with the use of its premises in any manner it sees fit.
    The answer further insists that it was tire intention that the agreement of April 30th, 1896, should be considered as incomplete and of no force until the signatures of all the owners of the beach front property had been obtained, and charges that a large number of the beach front owners have refused to execute it, and that for that reason it cannot be enforced as a general scheme of the owners; and it further insists that under the terms of that agreement and the clause therein contained regarding the construction of piers the complainant, Atlantic City1-, has no right to determine the size or proportions of any pier, or whether or not, when a pier is once constructed, the same may be widened by lateral additions to the sides thereof; and the defendant insists that it has the right to determine, at its discretion, the size and proportions of such pier as it may choose to erect on its lands lying oceanward of the boardwalk.
    Issue was joined cm this answer and the cause came to final hearing.

      Mr. Harry WooUon and Mr. Burrows O. Godfrey, for the complainant.

      Mr. Charles D. Thompson, for the defendant.
   Grey, V. C.

The defendant company claims that the grant or covenant of Loper (the defendant’s remote grantor) to Atlantic City, dated April 30th, 1896, called the boardwalk deed, did not convey any interest in lands to Atlantic City, first, because the operative words of that covenant will not pass an estate and at the most-grant a mere revocable license, which was revoked by Loper’s deed to the defendant’s grantor; that the original instrument is not produced in evidence; that the record thereof is not admissible and that no sufficient secondary proof of its contents has been offered.

The defendant also insists that if the boardwalk deed did pass any estate or right of possession from Loper, such estate or right is ineffective as against the defendant company for the following reasons:

1. That the boardwalk deed did not go into operation until it was accepted by the city’s ordinance, which was not passed until June 8th, 1896, a date subsequent to the making of the two deeds from Loper to the Eiddle company, &c., which were made on June 6th, 1896.

2. That if the boardwalk deed operated on the day of its date, April 30th, 1896, or on the day of its execution by Loper, on or before May 9th, 1896, it. was still subsequent and subject to LopeEs equitable agreement to convey made with William Eiddle on May 4th, 1896.

3. That the boardwalk deed was not actually executed and delivered by Loper and certainly not recorded until after his two conveyances of June 6th, 1896, to the Eiddle company, &c., under whom the defendant claims.

4. That the boardwalk deed is no part of a general scheme, at least as to Loper, because it is not shown that he attended at and participated in any meeting of the beach front owners to form and perfect such a general plan.

5. That if that deed is the result of a general scheme of improvement, it became operative only when every owner from one end of the boardwalk to the other had signed it, and that the refusal of any owner to sign postponed or defeated the scheme.

The defendant also claims that if it should be determined that the locus in quo is subject to the restrictions of the boardwalk deed, the defendant still has the right to construct a steel pier; that the restrictions in that deed cannot limit the size or proportions of such a pier, or prohibit the widening of a pier when once constructed by making lateral additions to the same.

Almost every point which is raised at this final hearing was presented and elaborately argued on the motion in this cause for a preliminary injunction. An opinion disposing of many of these questions will be found reported in 63 N. J. Eq. (18 Dick.) 644. The whole ease at this final hearing turns in great part upon the same documentary proofs which were submitted and passed upon on the former hearing. The defendant, on this hearing, called but one witness, Mr. Loper. The opinion given on the first hearing is illustrated by a diagram showing the locus in quo, which may be found in the report of the case. I do not deem it necessary to repeat in extenso the views then expressed and will refer to that opinion as my comment when the same claims are here again set up by the defendant company, shortly discussing now the new points raised at this final hearing.

First as to the objection that the boardwalk deed passed no estate and at most is but a revocable license. That deed certainly amounts to a covenant with the grantee and impliedly with all of the co-grantors and makers of similar deeds to Atlantic City, that the city should have the possession and use of an easement of way at the ocean edge, running continuously and successively across the lands of each grantor, for the purpose of erecting thereon a new steel boardwalk, to be used as a promenade by the public and the co-grantors in such deeds, which easement of way had attending thereon the aiding covenant that no buildings (save as specified in that deed) should be erected to the ocean-ward of the granted right of way, in order that the users of the boardwalk might have an uninterrupted ocean view and the enjoyment of the unimpeded breezes from the sea.

If the boardwalk covenant should be held to be a mere license, the overwhelming evidence is that it was fully executed before the making of the deeds of June 6th, 1896, to the defendant grantor. The steel boardwalk, a most expensive improvement, of great magnitude and of the most visible and notorious character, was in process of construction in the early part of Ma3r, 1896. The defendant and its antecedent grantors have for years accepted the benefit of these improvements and are now enjoying them. Other co-grantors in great number have done likewise. The status quo cannot be restored, and the defendants do not offer to restore it.

An inspection of the boardwalk covenant itself, and the aiding proof given in the cause touching the subject-matter with which it dealt, show that the privilege granted is much' more than a mere license, even if judged by the most severe standard. The grantors were many in number, each granted for himself that portion of his lot which the boardwalk strip crossed at the ocean front. Each grantor who surrendered his portion received as his consideration the benefit to his lot which came from the coincident surrenders of the other grantors, and the assurance appearing on the deed itself that the city could and would condemn the necessary lands of those who might refuse to grant, and that it would build the necessary boardwalk for the benefit of all the grantors and the public on the strip granted. This much more nearly resembles a covenant that an easement shall be enjoyed for which a valuable consideration has passed than it resembles a mere license. When accompanied, as in this case, by delivery of actual possession and the making of great improvements in accordance with the scheme which the defendant’s grantors have for years enjoyed, it is irrevocable.

This deed passes a present right to a continuous way. It contained no agreement that its operation shall be postponed until all of the owners of beach fronts shall join in it. There is no evidence that there ever was any agreement that its operation should be postponed. There was no occasion for such a postponement, for the deed itself shows that each owner knew that the city might by condemnation enforce the right of way against all owners who did not join in giving it. The proven fact is that the new boardwalk, as fast as built, took the place of the old one. The owners, including Loper, permitted the new structure to be continuously erected across their lands, some before and some after their making of the boardwalk deed to the city. A few only have never as yet signed that deed, but the new boardwalk has been continuously constructed ■ for several miles, of which the Loper property (nowr possessed by the defendant company) is about the centre. ■

The position of the city, thus put into actual possession of' the easement of way by the grantors named in the covenant, even if it received no estate in the lands of the boardwalk deed, was (when Loper signed the deed, on May 9th, 1896 j that of a covenantee for an easement of way who has been put in actual possession of the land over which the way passed, and has made important, substantial and permanent improvements upon it, according to the terms of the covenant. This was the situation which existed for several weeks before Mr. Loper made the two deeds on June 6th, 1896, to Riddle & Company, &c., the defendant company’s grantor.

A short résumé of the evidence on this point may throw some light on the situation of the locus in quo at and before the time of the making of the deed by Loper to the defendant’s grantor.

The work on the new steel boardwalk began on April 20th, 1896, and continued until it was completed, in July, of that year.

The character of the structure was so prominent from its first beginning — in steel columns and girders to carry a plank walk forty feet wide — that anyone who approached it was necessarily notified that the parties erecting it were asserting a permanent right of occupation. The structure was also built at the ocean’s edge and was plainly a continuous boardwalk, intended for promenaders, who might, in passing to and fro upon it, enjoy the ocean view and breezes. This was erected across the property of Loper between the 20th of April and the 6th day of May, 1896. At that 'time Loper, the defendant’s grantor, owned not only the title to the land across which the - steel boardwalk was being constructed at the ocean end of Pennsylvania avenue, but also the State of New Jersey’s riparian title to the lands below high-water mark, which had been convej^ed to him by deed of August 29th, 1895, and which included the exact locus in quo the defendant company is about to erect its lateral addition to its pier. The Loper deed, which passed the riparian title, including the locus, to the defendant’s grantor, is the second deed made by Loper to the Riddle company of the date of June 6th, 1896, and is marked Exhibit D 3 in this cause. It is recorded June 10th, 1896, in Book 203 of Deeds, page 383.

Mr. Loper’s testimony in this cause, I think, clearly shows that he knew, when he made the boardwalk deed to the city, that the new steel boardwalk was then being gradually substituted for the old boardwalk across his lands at the ocean end of Pennsylvania avenue. Both structures were in full view at the same time from his property. He was at this time the owner, both of the land at the ocean edge, across which the new boardwalk was being constructed, and he was also the owner of the land which the state had conveyed to him lying below high-water mark, which has since, by intermediate conveyances, come into the possession of the defendant, and on which it is presently erecting the structure to which the complainant (Atlantic City) objects. Mr. Loper’s deed to the city, even if considered to be solely a covenant for a right of way with the aiding covenant against building to the oceanward of the way, affected not only the boardwalk strip, with the easement of way, but also those lands of Mr. Loper lying oceanward of the boardwalk strip below high-water mark. These lands of Loper became bound by the aiding covenants against building to the oceanward of the boardwalk right of way.

Any grantee from Loper, between the dates of April 20th, 1896, and June of that year, of either the lands lying at the ocean end of Pennsylvania avenue across which the boardwalk ran or the lands in front of them below high-water mark, took his title with actual notice of the boardwalk easement along the ocean front, and certainly was put upon warning of its attendant and protective covenants against buildings to be erected on the oceanward side of the boardwalk.

The boardwalk itself was then in full view; it was plainly a continuous footway along the ocean, not only on Loper’s property, but also on the property of all of the beach front owners; and just as plainly the main purpose and object of that way was manifest to every onlooker, namely, the enjoyment from the boardwalk of a view of the sea uninterrupted by buildings or other structures on the oceanward side of the boardwalk. This was its only and obvious use.

The landward side of the boardwalk was closely built up along its entire length. The oceanward side of it had at that time (1896) no buildings except Young’s pier and the Iron pier. Those two were the only buildings standing oceanward of the boardwalk in 1896. This fact would of itself put anyone interested upon inquiry to ascertain why so remarkable a situation should exist. During the whole period from April 20th to June, 1896, the construction of tire new steel boardwalk was openly going on under the direction of Atlantic City workmen and superintendence. The slightest inquiry of anyone in charge of that work would at once have disclosed the grant or covenant, as it may be, of the boardwalk continuous right of way at the ocean edge, and its aiding covenants for sea view and sea breeze unobstructed by buildings on the oceanward side.

While the new steel boardwalk was in process of construction the old boardwalk was permitted to stand until the new work supplanted it, the old walk being removed in parcels as the new walk took its place. This was another notorious and remarkable fact which would at once draw attention to the whole scheme and indicate to an onlooker the purpose of the improvement.

As Doper’s deed to the Riddle company, &c. (under which the defendant claims), was not made until June 6th, 1896, his grantees hinder that deed and those claiming under them were unquestionably warned of the city’s possession and put upon inquiry as to the extent and character of its claim.

The contention that the original boardwalk agreement is not produced, that the record is not admissible, and that accurate secondary proof of the contents of that deed has not been made, is met by the admissions of the third paragraph of the defendant’s answer that “an agreement, bearing date April 30th, 1896, was executed by certain beach front owners and recorded as in the bill of complaint set forth,” leaving Hie complainant to prove the date, contents and delivery of that agreement. The complainant has, in my judgment, sufficiently proved the loss of the original Doper boardwalk deed, and by secondary evidence has shown its date, contents and delivery. Doper himself, though brought into court to throw doubt on his boardwalk deed to the city, by questioning the date of its acknowledgment by him, practically admits that he did make that deed. “I have a distinct recollection,” he says, “of Judge Endieott, and I think — I believe it was Judge Thompson — calling at my office in Philadelphia, 713 Chestnut street, for me to sign that which turned out to be the easement deed, and I so understood it.” He admitted that the instrument he signed was a printed form of deed. • This corresponds with the complainant’s proofs'.

There were so many owners of beach front lands, and so many covenants to be prepared, that the boardwalk deed was printed on a special form with blanks for the names of the owners. Dozens of them were executed. In some deeds many owners joined in executing the printed form. Others were executed by a single owner. A copy of Mr. Richard F. Loper’s deed is annexed to the bill of complaint. It will be seen on examination that many other owners joined with him. The description is of the right of way. Each grantor covenants that the city may have the whole easement and the effect is that each gives the portion of his lot which it covers.

The original deed which Mr. Loper signed having been lost, the defendant’s counsel insists that the record of it is not admissible in evidence, because he contends the deed is not such a conveyance as the statute enables to be recorded. ’Mr. Loper, when the copy was exhibited to him, attempted to throw doubt upon it, but his testimony, when properly considered, shows that he did in fact execute the covenant on one of the printed forms, which are all alike.

The defendant’s counsel, in the effort to exclude proof of Mr. Loper’s deed to the city, has also called attention to slight variances in some of the boardwalk deeds, none of Which affect those portions of it which are here under consideration, nor do they throw serious doubt upon the correctness of that copy of Mr. Loper’s deed which is here produced.

Mr. Loper’s testimony was not impressive in either its matter or in the manner of its delivery. Nothing in it led me to doubt that Mr. Loper had actually signed and acknowledged the boardwalk easement deed on or before May 9th, 1896, as. Judge Endicott (who took his acknowledgment) testified Mr. Loper had done, or that the copy produced is in fact a copy of that deed.

In my judgment, even if it be conceded that the boardwalk deeds did not convey a legal estate, and that for this reason they were not recordable under the statute or provable by the record, jret it has been proven in this case that Mr. Loper did, in fact, execute the deed, copy whereof is annexed to the bill of complaint; its loss has been shown and secondary proof of its contents has been made. Tire right which passed by such a covenan t when accompanied by the giving of possession of the premises affected by it, and the expenditure of money upon it in permanent and extensive improvements in accordance with the covenant, is not revocable by the operation of a deed subsequently made to a grantee who takes it with full notice before he took his deed of the possession and improvements of the covenantee. That, in my view, was the status of the Riddle company and Brady under their deeds of June 6th, 1896, in view of the actual condition of the locus in quo at that time. Brady himself signed the deed conveying the boardwalk to the city.

I am of the opinion, therefore, that Mr. Loper’s boardwalk deed to the city has been sufficiently proved; that the defendant company’s grantor had notice and warning of it and took their deeds subject to the city’s right of way in the boardwalk and the attending protecting covenants against building to the ocean-ward thereof.

As to the other contentions of the defendant that the deed did not go into operation until it was accepted by the city’s ordinance, no additional proofs have been offered on final hearing and the matter is fully disposed of by the eighth syllabus (18 Dick. 645), to which I refer.

The defendant’s claim that the city is bound by the preliminary equitable agreement for conveyance made between Loper and Riddle on May 4th, 1896, is not supported by any proof whatever that either the city or anyone acting for it had any notice of this private agreement.

Both the city and the co-grantors of Loper were in the position of bona fide purchasers without notice of this private and hidden agreement. The city was already in good faith constructing its boardwalk. The co-grantors of Loper gave their land. Neither of thorn ever heard of this private contract between Loper, on the one part, and the Eiddle company and Joseph Brady, on the other. The claim set up under it is therefore inadmissible.

The contention that the boardwalk deed was not actually executed and delivered by Loper until after the conveyances of June 6th, 1896, to the Eiddle company, &c., is also fully met in the previous opinion and decided therein.

The city’s deed was, it is true, not recorded until after Loper’s two deeds to the Riddle company, &e., were recorded. This accident is probably the temptation which led the defendant company to claim that it and the Eiddle company and Brady (the grantees from Loper who recorded their deeds precedently to that of the city) are free from the restrictive operation of the city’s boardwalk covenants. If they are, .they may build to the oceanward of the boardwalk at their, choice, as by their answer in this cause they assert they have a right to do; they can thus, to their own great profit, practically destroy the essential character of the boardwalk, which absolutely requires, as an incident to its enjoyment, a free view of the sea. I hold, as above stated, that, although the city’s deed from Loper, Brady and others was recorded after the recording of Loper’s deed to the Eiddle company and Brady, yet the Eiddle company and Brady had full notice and warning of the city’s rights when they accepted their two deeds from Loper.

The contention that the boardwalk has not been shown to be part of a general scheme, or that it is not binding upon Mr. Loper and his grantees for want of proof of a general conference and agreement between the grantors, in which Mr. Loper participated, is also of no avail in this case. The expressed terms of the boardwalk deeds and the many signers thereof show that there was a common purpose to which all the grantors contributed their portions for the benefit of the public in general and of themselves as owners, at the ocean’s edge, in particular.

These documentary proofs sufficiently show a general scheme, and with Mr. Loper’s own testimony in this case they indicate that lie was a participant in, and sharer of, its benefits, whether he actually attended the conference or meeting for that purpose or not.

So, also, the claim that the general scheme became operative only when every owner from one end to the other of the boardwalk had signed the boardwalk deed, and that the failure of any one owner to sign defeated the operation of the scheme, is unsupported by any proof that there was any such agreement. The action of Mr. Loper and the other beach front owners in delivering tlieir deeds, and in permitting actual possession to be taken under them without waiting to sec whether every other beach front owner also signed, is a clear indication that there never was any purpose or agreement that these boardwalk deeds and the easements thereby given should become operative only when every beach front owner had signed.

There was no need of any agreement that the boardwalk covenant should not go into operation until all beach front owners had signed it. The covenant contained recitals showing that the right of way over the lands of all who did sign it might be obtained by condemnation.

These rulings leave as the only question to be considered the defendant’s claim that notwithstanding the restrictions in the deed, it still has the right to construct a steel pier, and that those restrictions cannot limit the size or proportions of the pier or prohibit the widening of it by making lateral additions thereto after it has once been completely constructed.

The defendant’s Auditorium pier was built about a year after the then owners of the land on which it is located had joined with the other beach front owners in making the boardwalk easement deed or covenant. They had completed their pier before they began the improvement which is now challenged. The answer admits that it is a “lateral addition” to an existing pier, and does not claim that it is work about to be done to complete an unfinished one. Tire boardwalk covenant limits the right of each owner to the erection of one pier of certain length and character of material. The natural situation requires that such a pier should run out into the ocean. If it does not, and should be located parallel with the boardwalk, it would not be a pier. When the one pier is finished, the owner cannot be held to have the right to make unlimited lateral additions to it — first, because the restrictions prohibit the erection of all buildings oceanward of the boardwalk except the one pier, and when that one pier has been erected by any owner he has exhausted his reserved right; secondly, the whole scheme is based upon the preservation of sea view and access of ocean breezes from the boardwalk. If each owner may make, at his choice, lateral additions to his one pier, the boardwalk will soon be entirely cut off from both ocean view and breezes by sidewise extensions of the piers (parallel to the boardwalk), and it will be nothing but an enclosed promenade. Again, it is admitted that the proposed lateral addition to the defendant’s pier is being constructed of wooden piling. This is directly in breach of the express requirements of the boardwalk covenant that the pier to be built by an owner shall be made of steel or iron. This is a matter of substance, in view of the dangers from fire at the ocean front, where the wind has so clear a sweep that the use there of non-combustible materials is the only safe plan of construction. A discussion of the effect of the restrictions touching the piers may be found in the former opinion in this case (18 Dick. 672, 673).

The complainant bases its claim of right to restrain the defendant’s further construction of the lateral addition to its pier, in part, on the effect of the deed of Charles Evans to Atlantic City, dated January 22d, 1890, granting to the city a right of way for a boardwalk, and attempting to restrain the erection of building oceanward of the boardwalk. At the time Evans made that deed he did-not own the lands lying below high-water mark, where the defendant is proceeding to build. Evans’ attempted restriction was inoperative upon the lands lying below 'high-water mark. This phase of the case is more fully discussed and cases cited on page 662 of the former opinion, to which I refer.

The boardwalk easement is not dependent for its integrity upon Evans’ deed of 1890, though Evans did not own the lands below high-water mark when he made it in 1890. Loper did own those lands when he joined in the boardwalk covenant in 1896, having, as above stated, acquired them by grant from the state by deed of August 29th, 1895.

In my view, the defendant should be restrained from the erection of the lateral addition to the pier, which it proposes to build.


text:
    George R. Myers et al. v. The Steel Machine Company.
    [Filed May 20th, 1904.]
    1. The defendant, a machine company, agreed to sell to the complainants all of certain printing presses, with patent feeds, which the defendant company should manufacture, and to sell to no other person, provided the complainants should purchase all that the defendant should make. The defendant agreed to deliver at least two machines per month, and that “in the event of the party of the first part [the defendant] failing for three consecutive months to deliver said two machines per month, then the said party of the second part [the complainants] shall be at liberty to have such machines built by a responsible concern.” — Held, this is not an alternative contract, giving an option to the manufacturing company to build the machines or not as it may choose. This clause is intended solely for the protection of the complainants in case the defendant shall fail to perform. The complainants may hold the defendant company to its agreement not to sell to anyone else, and may also, under the circumstances recited, seek to save themselves from loss, as far as they can, by procuring the machines to be made elsewhere.
    2. The defence must stand on the issues made by the pleadings. Matters not set up in the pleadings as a defence, but introduced only in argument on the testimony, cannot be made the basis of the decision of the cause.
    3. When a contract requires the defendant to do for the complainants, exclusively, some act calling for the exercise of skill or artistic capacity, equity will enforce the negative side of the agreement and will restrain the defendant from giving his services to any other than the complainants for whom he agreed to work, but it will not make a mandatory decree to compel the defendant to exercise his skill in specifically performing the contract.

      On bill, answer and proofs.
    This bill is filed by George R. Myers, Joseph T. Kavenangh and George W. Howard, severally and jointly, trading as the American Machine Company, against the sole defendant-, the Steel Machine Company, a corporation of this state, asking that the defendant company be restrained from selling or attempting to sell certain described printing presses, which it is alleged the defendant is about to do, contrary to the terms of an agreement made by the defendant with the complainants, and also asking that the defendant company may be decreed specifically to perform that agreement.
    The complainants annex to the hill of complaint a copy of the agreement upon which they base their right to the relief they seek. It is made between the defendant, the Steel Machine Company, party of the first part, and the complainants, party of the second part. It is dated on the 21st day of December, 1901, and witnesses that the party of the first part (the Steel Machine Compaq, defendant) :
    “Does hereby agree to sell to the said parties of the second part [the complainants in this cause], and the said parties of the second part do hereby agree to purchase of the Said party of the first part, all the Johnston automatic printing presses, with -automatic patent feeds, that the said party of the first part may manufacture, at the following schedule of prices: Size 1, 6x9, $350, with the W. G. Johnston feed; size of form No. 2, 10 x 15, $650, with the W. G. Johnston patent feed; size of form No. 3, 15 x 18, $800, with the W. G. Johnston patent feed. The said presses and feed to be tested, inspected and in perfect order before being packed and crated, and guaranteed to be in good working order when put up for running, all breakage by transportation to be replaced by said party of the first part, and all parts not complete to be furnished free of charge, payment for said presses and patent feed to be made in thirty days from delivery or two per cent, off for cash payment on presentation of bill of lading.
    “The said party of the first part agrees to manufacture and to continue to manufacture the Johnston automatic printing press, with feed, with due diligence, barring strikes and other uncontrollable delays, and to sell the said machines to the parties of the second part and to no other person or persons, in the United States, Great Britain and Canada; provided, however, that the said parties of the second part shall purchase from the said party of the first part all the Johnston automatic presses, with feeds, the party of the first part shall manufacture; and provided further, that in case the parties of the second part shall fail to purchase from the party of the first part all machines manufactured as aforesaid for a period of three months, that then and in that event the party of the first part reserves the right to sell to other parties such machines as they may have on hand undisposed of at prices not less than those quoted or sold for by the parties of the second part. And the party of the first part agrees to deliver at least two machines per month during each month, beginning with January 1st, 1902, and in the event of the said party of the first part failing for three consecutive months to deliver said two machines per month, then the said parties of the second part shall be at liberty to have such machines built by a responsible concern, paying the said party of the first part the difference in its costs and the aforesaid selling price.”
    The complainants further allege that, acting upon 'the said agreement securing to them the exclusive privilege of purchasing the printing presses therein described, they spent large sums of money, for advertising and inviting purchasers to buy from them, relying on the agreement in question as their protection; that they have delivered to the defendant company orders for $32,000 worth of the machines in question, but that the defendant company has failed and refused to deliver such machines in good working order.
    The complainants set forth in detail the names of vendees from whom they obtained agreements to purchase the presses, which agreements, the complainants say, they have been unable to fulfill because the defendant company has refused and failed to carry out their agreement.
    The bill of complaint further states that the Johnston automatic printing presses, with patent feed (the machines which the defendant agreed to manufacture and of which the complainants were to have the exclusive sale), are built under letters-patent issued to one William G-. Johnston, who has assigned the same to George G. Green, president of the defendant company, in trust for the use of that company. That the complainants have been unable to avail themselves of the privilege given them by the agreement (in case the defendant failed for three consecutive months to deliver two machines a month) to build said machines themselves or obtain them to be built, because the defendant company.has in its possession all the drawings, patents and patterns relating to the construction of those machines. The complainants charge that the defendant company, with intent to deprive the complainants of the benefits secured to them by the said contract, has refused to deliver said presses although they have at least four manufactured and ready for delivery, which they have offered to sell to other persons than the complainants at lower prices than those at which the complainants have been offering to sell them. That these acts of the defendant company are in fraud of the complainants’ rights and are contrary to the express provisions of said agreement, which declares that the defendant company, if it sells any presses to other parties than the complainants, must sell them at prices not less than those for which the complainants offer said machines for sale, and that under said agreement the defendant can only sell at those prices in case the complainants shall fail to take and pay for the machines as provided' in the contract, and the complainants aver that they have not refused to accept said machines, but, on the contrary, they say they have always been ready to accept the same, that the defendant company has refused to deliver them.
    The bill of complaint contains a clause alleging the insolvency of the defendant company and the illegal issue of its stock. This charge and any relief sought thereon was abandoned at the hearing of the cause.
    The complainants pray that the Steel Machine Company, defendant, ma.y be decreed specifically to perform the agreement of the 21st day of December, 1901, set forth in the bill of complaint; that it may be enjoined from selling, or attempting to sell, the machines referred to in that agreement, contrary to the terms thereof, to any other persons than the complainants, and from advertising that it is authorized to sell said machines, and from selling or disposing, or attempting to sell or dispose, of the patent rights under which ihe machines were built.
    A preliminary injunction was allowed after a hearing, restraining the defendant company from selling or attempting to sell in the United States, Great Britain or Canada, Johnston automatic printing presses, with the Johnston patent feed, to any other person or persons than the complainant and for the prices at which they are sold by the complainants.
    The defendant company has answered the bill of complaint. It admits the execution and delivery of the agreement, copy whereof is annexed to the bill of complaint, and leaves the complainants to prove what they may have done and expended in efforts to advertise and sell the machines in question. It admits that the complainants had placed with the defendant company several orders for machines, and alleges that it had carried out its contract with the complainants so far as it was permitted to do by the complainants.
    It denies that the defendant company’s failure to furnish two machines a month is in any way attributable to the defendant, and that the complainants’ inability to carry out any contracts that they may have made for the delivery of the machines was in any way due to the defendant company’s f ilure to perform its contract with the complainants.
    The defendant admits that the machines in question are manufactured, built and constructed under letiers-patent granted by the government to William G. Johnston, and that Johnston has assigned said patents to the defendant company; but it denies that the said machines can be built under any letters-patent about to be granted by the government to George G. Green, as trustee for the defendant company. The defendant denies that it has failed to furnish any of the machines in good working order to the complainants under said agreement, and denies that in fraud of the contract, or for the purpose of breaking the same, it has refused to deliver said machines; denies that it has on hand any of said machines except two, which were shipped to the complainants under the contract after approval by them and which they subsequently returned. The defendant company further denies that it has offered the said machines for sale in violation of said agreement and expressly denies that it has offered to sell them to the parties named in the bill of complaint.
    The defendant then states the circumstances of the case to be that in the month of December, 1901, George G. Green was applied to by William Johnston and William G. Johnston to form a company for the manufacture of the said machines to bo known as the Johnston automatic printing press and the William G. Johnston patent feed, combined; that subsequently the complainant Kavenaugh represented to said Green that he (Kavenaugh) was a member of the American Machine Company, which had a contract with the Johnstons, under which the American Machine Company held the exclusive agency for the sale of said machines in the United States, Great Britain and Canada, requiring the delivery of two machines per month; that he (Kavenaugh) had filed a bill in the court of chancery to restrain the Johnstons from disposing of the patent right for said machine or selling them to any other person than the American Machine Company, and to compel the Johnstons to perform their said contract. Kavenaugh proposed to said Green that if he (Green) would form a company and furnish the necessary capital to manufacture the machines; that it would be a very profitable investment, and that he (Kavenaugh) had large orders for the purchase of said machines. He offered to discontinue the suit against Johnstons, provided he could secure a similar contract from the company to bo formed by said Green and he (Kavenaugh) be reimbursed his expenses of tire chancery suit, with some other claims which he had against the Johnstons, amounting to about $400.
    ‘ The defendant alleges that on these representations the defendant company was organized and that it paid the $400 and entered into the agreement set forth in the bill of complaint, and invested $5,000 for tools and equipments for the manufacture of the said machines in compliance with the terms of said contract; that one machine was built (after some delay occasioned by changes suggested by the complainant Kavenaugh) strictly in accordance with the plans of the Johnston automatic printing press and William G. Johnston patent feed, and was in perfect running order exhibited by the defendant company at the factory, was seen and approved by the complainant Kavenaugh and accepted by him, and ordered shipped, on March 12th, 1902, to his address at the Bourse, in Philadelphia, where he received it and placed it on exhibition to the general public. Another machine was built for the complainant Kavenangh in like manner, and was, on April 16th, 1902, shipped in his name to John Wanamaker’s store, in Philadelphia, and there received and exhibited by him to the general public; that neither the complainant Kavenaugh nor the American Machine Company paid for said machine according to the provisions of the contract, and when pressed for payment by the defendant the' said Kavenaugh returned said machines to said defendant.
    The defendant, further answering, says that at the request of the complainant Kavenaugh the defendant company agreed to furnish to the complainants another printing press of an entirely different pattern and construction from the one called for by the contract, and it was agreed that the said machine was not furnished under said contract, nor governed by the terms thereof, except that the price of the machine was the same, namety, $350, which it was agreed should be paid upon its delivery at Wanamaker’s, and that the title thereto should not pass until such payment was made; that the machine was put up and run at the defendant company’s factory in the presence of the complainant Kavenaugh and was approved by him and shipped to Wanamaker’s by his direction, where it was set up and worked perfectly; that said Kavenaugh did not pay for the machine as he had agreed to do; that the defendant company directed Wanamaker not to pay the complainant Kave-' naugh for it, after which the complainant Kavenaugh removed the machine from Wanamaker’s and secreted it, so that the defendant company has been unable to recover it, and the complainant Kavenaugh still refuses to pay for it.
    The defendant company alleges that it made the contract in question with the complainants in good faith and has endeavored on its part to carry out its terms, but has been prevented from furnishing the number of machines contracted for by the fraudulent conduct of the complainants in refusing to pay for the same, and that the defendant is under no obligation to continue to manufacture the machines after the complainants’ failure to accept and pay for them.
    The defendant company further insists that a full and adequate remedy for any violation of the contract is therein provided for, as the matters set up in the complainants’ hill are matters which should be tried at law and in respect to which the complainants are not entitled to any equitable relief, and the defendant company asks the same benefit of this defence as if it had demurred to the bill of complaint.
    The cause came to a hearing on these pleadings.

      Mr. Spencer Simpson and Mr. Joseph H. Gaslcill, for the complainants.

      Mr. Austin il. Swaclchamer and Mr.. John W. Wescoit, with whom was Mr. Horace Pettit (of the Philadelphia bar), for the defendant.
   Grey, V. C.

Some portion of the argument has been devoted to an ascertainment of the rights of the parties by construction of the contract of December 21st, 1901. The defendant contends that the contract by its express terms provides for the failure of the defendant to build the machines and furnishes to the complainants the exclusive remedy for such a failure. This is found in the clause which declared that

“in case the party of the first part [the defendant company] shall fail for three consecutive months to deliver two machines per month, then the complainants shall be at liberty to have such machines built by a responsible concern, paying the said party of the first part the difference in its costs and the aforesaid selling price.”

The defendant insists that this clause protects the defendant company against conducting the business at a loss; that under this provision the defendant may build the machines or not at its option; that so long as it is profitable to' build machines at the stated schedule of prices the defendant would be likely to furnish the machines, but as soon as the business was conducted at a loss it would most likely quit. The defendant refers to the cases of O’Connor v. Tyrrell, 53 N. J. Eq. (8 Dick.) 15, and Crane v. Peer, 43 N. J. Eq. (16 Stew.) 553, as sustaining -this view.

The counsel for the defendant has, I think, correctly stated the results which would probably follow such a construction of the contract, but I cannot find that the clause referred to has any such meaning. There is a definite agreement on the part of the defendant company to do a certain act, and an option is given (not to the defendant but to the complainants) in case the defendant fails to do that act, to arrange with someone else to do the act at no greater cost to the complainants. The agreement binds the defendant to perform. The right to secure performance by some other person lies with the complainants alone and is for their protection and at their choice. Nothing in the agreement gives to the defendant an election to perform, or to refuse to do so, and take the difference between cost and the price named in the agreement. Nor does anything in the contract declare that if the complainants (under the circumstances named in the agreement) choose to have machines made by someone else that choice shall relieve the defendant company from its obligation to make and furnish the minimum number of machines required by the contract. This clause is intended for the protection of tire complainants in case the defendant fails to perform; it cannot justly be perverted into a waiting option under which the defendant may safely refuse to perform whenever it finds it profitable to do so. From this point of view the complainants are at liberty to hold the defendant company to its agreement not to sell to anyone else, while at the same time seeking to save themselves as far as may be by procuring the machines to be made elsewhere.

The cases cited by the defendant do not support its contention. They do discuss the effect of alternative contracts, but they have no direct application to the case now under consideration. They hold in substance that an agreement to do an act with a provision that a named sum in liquidated damages may be recovered on non-performance does not, per se, render the contract an optional one, enabling the parties to choose between the performance and the payment of the liquidated damages; and that whether the contract is alternative or not is to be ascertained from all its terms and their application to the subject-matter. This view, so far as it is applicable, disfavors the argument of the defendant, for, as is above shown, the phrasing of the agreement in this respect obliges the defendant company to perform and gives it no option whatever to take any alternative course.

It is not denied that the contract on its face obliges the defendant company to make and deliver to the complainants at least two machines per month, beginning January 1st, 1902. The machines were by the terms of the contract to be “tested, inspected and in perfect order before being packed and crated and guaranteed to be in good working order when put up for running.” The testimony, while quite contradictory on many points, is entirely uniform in its showing that the defendant company, though constantly urged by the complainants to furnish the machines, did not in fact comply with its contract and the complainants’ solicitations for performance. The defendant does not claim that it either did or could furnish two perfected machines per month. The testimony shows that from January, 1902, when delivery should have begun, until June of that year (when- the bill of complaint in this cause was filed) the complainants were constantly demanding performance and the defendant company as constantly excusing itself. Two or three machines were furnished during the five months from January to May, 1902, but none appear to have been “in good working order when put up for running.”

The oral testimony on this point is contradictory to some extent as to the “good working order” of the machines furnished, but no one claims that two- perfected machines per month were furnished or even that the defendant company could during January, February, March and April, 1902, turn out that number, as it had agreed to do.

It is now claimed by the defendant company that the two or three machines which were supplied were accepted by the complainants, and that the reason of the differences between the parties was the failure of the complainants to pay for them. The oral testimony on this point, as on almost every other, is quite contra dictorj1', but the letters exchanged between the parties at the time these events were taking place show that the real point of difference was based on the fact that none of the machines furnished were “in good working order when put up for running.” On the contrary, they constantly failed to meet the requirements of ordinary continued use, and the defendant company itself recognized this by a profession of efforts to better and improve them. 1 No question of failure to pay could, under the contract, properly have been raised until thirty days after the delivery of a machine in good working order when put up for running. No such machine was in fact delivered. The correspondence does not bear out the defendant’s claim that the complainants’ refusal to pay was the cause of the defendant’s failure to supply the machines. This excuse seems to be. an afterthought.

There is testimony which goes to show that the defendant company’s officers deliberately planned a breach of its contract to supply the machines to the complainants in order that a higher than the contract price might be obtained by sales of the improved machines to other persons. This bad faith is strenuously denied. In the view I take of the matter I have not found it necessary to determine the contradictions of the witnesses on this question.

Under the terms of the contract, two perfected machines should have been shipped in January, 1902; two more in each succeeding month. In fact, none were furnished in January, none in February, but one in March, and that was not “in good working order when put up for running,” and but one in April, which was open to the same criticism.

The machines appear to have worked experimentally, but not to have been within the requirements of the contract that they should be in “good working order when put up for running,” which obviously means that the machine should be so perfected that when put in place to run for the purpose for which it was made it should be in good working order.

The differences between the parties touching the failure of the defendant company to furnish a perfect machine continued, as is shown by the correspondence, from January to May, 1902. On May 6th, 1902, the president of the defendant company wrote to the complainants that the defendant company

“is pushing our new presses as rapidly as possible. * * * I will be able to show you a press complete and in perfect working order next Monday; something entirely new, and which I know you will be delighted over, and think there is no doubt that we will be able to complete four this month and two others to follow in a couple of weeks.”

This letter was written by the defendant company to the complainants after four months of failure on the part of the defendant to fulfill its contract by supplying a good working machine, notwithstanding the complainants’ constant solicitations that the defendant should perfect and deliver the machine. The letter is plainly written from the point of view of one who feels himself to have been at fault in the past towards the party to whom the letter is written, and who seeks to remove previous cause of complaint by the showing that he had now attained the object sought — “a press complete and in perfect working order.” The fact that it was written to the complainants, who held the defendant’s contract to furnish a press- in good working order, and the reference to the defendant’s ability to complete a number of the new presses in the near future, also indicate that the writer understood that the so-called new presses were the perfected machines which would thereafter enable the defendant company to fulfill its contract.

Kothing in the above-mentioned letter of May 6th, or in any of the previous correspondence, raised any question about the complainants’ failure to pay for the machines, or suggested that the defendant’s new press was outside the operation of the contract of December 21st, 1901. The complainants evidently so understood the situation, for on May 21st they insisted, by letter, on the delivery of the press under the contract. The defendant company, by telegrams, declined to ship the press until arrangements were made with them, thus ignoring the terms of the contract which arranged for payments for the machines to be made in thirty days after they were delivered. On May 26th, 1902, the defendant company, for the first time, formally showed its purpose to deny that its perfected press was within the terms of its contract of December 21st, 1901. On that day the defendant company wrote the complainants, referring to a meeting of the company on the preceding Saturday night, stating, in terms, that it did not “hold itself under any obligation to forward this new press under the original contract,” but intimating that this matter could be arranged in the near future. About the same time Colonel Green, the president of the defendant company, intimated to the complainants that new terms regarding the furnishing of the perfected press could be arranged, and it is also shown that the complainants, who had never yet received from the defendant company a. single machine “in good working order when put up for running,” as required by the contract, insisted that the defendant was bound to furnish a perfected press. No basis of settlement was reached and the bill of complaint was filed on June 23d, 1902.

The evidence shows that the defendant company failed, and I think that it intended to fail, to perform its contract of December 21st, 1901.

Several suggestions are made by the defendant company to avoid the enforcement of its contract in this suit. It is claimed that the complainants’ partnership has been dissolved and its assets, including the contract now in dispute, transferred to a new company.

The defendant company’s answer admits that it entered into the contract with the complainants, and sets up no claim that they had dissolved and had assigned or transferred the contract, or were in any way incapable of enforcing it. On the contrary, the defence, as pleaded, is that the defendant company had always recognized the complainants as entitled to performance of the contract and had in fact performed it to them.

The defendant also contends that the contract of December 21st, 1901, was obtained from the defendant by false representations made by Mr. Kavenaugh, one of the complainants, concerning the financial standing of his partners — Meyers and Howard. This contention is open to the same objection that it has not been put in issue.

The defence must stand on the issues made by the pleadings and not on argument based on matters suggested from the evidence only and not even referred to in the pleadings. Riddle v. Keller, 61 N. J. Eq. (16 Dick.) 521, collating cases on this point. The weight of the evidence, if it should be considered, also fails to support these claims of the defendant company.

The defendant also contends that the defendant company ought not to be restrained from breach of its contract, because, looking at the contract from the standpoint most favorable to the complainants, the construction of the contract is doubtful. In my judgment the contract itself is expressed with sufficient certainty to enable the court to declare what the parties intended. Whatever doubts there are have come into the cáse not because of the terms of the contract, as it is expressed, but by reason of subsequently happening circumstances and of questions whether the contract is applicable to those after incidents.

The contract shows that the defendant company agreed to furnish a certain number and kind of automatic presses, with feeds attached, at certain times for a named price, exclusively to the complainants, and the proof shows that the defendant has not only not furnished those machines, as it agreed to do, but that it has sought to avoid the performance of that contract by manifesting a purpose to sell the machines to other persons than the complainants.

It is also objected that the contract gives the complainants a monopoly on Johnston’s invention and is therefore against public policy. The rule regarding contracts in restraint of trade is based on the fear that an agreement which prevents a man from earning his living may deprive the public of the benefit of his labor and skill and compel him to depend upon the public for his support. This contract does not prevent the defendant company from producing the machines; on the contrary, the contract obliges it to produce them. It does not deprive the public pf their use, for the obvious purpose of the complainants in purchasing them is to sell them again to the general public. While by the terms of the contract the defendant may not sell to any other persons than the complainants, this condition, by the same contract, exists only so long as the complainants purchase all of the machines which the defendant may manufacture. The right of the public to have the ultimate benefit of the production of the machines is therefore plainly secured on tire face of the contract itself.

The circumstances of the case justify the allowance of an injunction restraining the defendant company from selling or attempting to sell Johnston automatic printing presses, with the Johnston patent feed, to any other person or persons than the complainants, contrary to the terms of the defendant’s agreement.

The complainants insist that they are entitled to a) decree which shall compel the defendant company specifically to perform its agreement according to its terms.

There is a class of cases in which the agreement sought to be enforced is sufficiently established and the obligation of the defendant is conclusively shown but in which courts of equity refuse to make a mandatory decree for specific performance. These decisions have been given on contracts which require the defendant to do some personal act, because of his artistic capacity or skill in that matter — as an engagement to sing at a theatre and not elsewhere (Lumley v. Wagner, 1 DeG. M. & G. 604), or to build a house. Errington v. Aynesly, 2 Bro. Ch. Cas. 343. In such cases equity will enforce a negative covenant and restrain the defendant from giving another than the complainant (whom he contracted exclusively to serve) the benefit of his skill, but it will not malee a mandatory decree to compel the defendant to exercise his art in the actual performance of the contract. Lumley v. Wagner, ubi supra; Montague v. Flockton, 16 Eng. Eq. 189.

In the case at bar the defendant company has agreed to manufacture and sell to the complainants (and to no one else so long as the complainants take all that the defendant shall produce) certain machines, which shall be “in good working order when put up for running.” The evidence shows that a considerable degree of mechanical skill is required to produce the machine in question in such perfection of performance that when put up for running it shall be in good working order. This court cannot compel the continued exercise of personal skill in the production and sale to complainants of a succession of perfectly-working machines. It will not, for this reason, make a decree requiring such acts to be done. It may and will, however, restrain the defendant company, which agreed to do those acts exclusively for the complainants, from doing them for or with any other person.

For these reasons the complainants should have an injunction to enforce the negative covenants of the contract of December gist, 1901.

I will advise a decree accordingly.


text:
    Charles Evans v. The New Auditorium Pier Company.
    [Filed June 3d, 1904.]
    1. An owner of lands bordering on high-water mark, who has not obtained the state’s title to the lands lying in front of his property and below low-water mark, cannot charge the latter with an easement enforceable against a subsequent grant by the state of its title in those lands.
    2. Where an owner of land bordering on high-water mark conveyed the same by a deed containing a covenant against the erection of any building nearer than twenty-seven feet to a certain street, this restriction did not apply to lands subsequently added by natural accretion to that conveyed.
    3. Where several owners of lots fronting on a beach joined in a deed granting to a city an easement in a strip of land several miles long, and passing over the property of a great many different owners, to be used for a walk, with a covenant that no building should be erected on the ocean side, one of the co-grantors was entitled to restrain one of the other grantors from building a structure on the ocean side of the walk on land which the latter grantor had, subsequent to the covenant, acquired from the state.

      Mr. Burrows C. Godfrey and Mr. Jay Ten Byck, for the complainant.

      Mr. Charles D. Thompson, for the defendant.
   Grey, V. C.

The complainant seeks to restrain the defendant company from constructing a lateral addition to its pier, which is located close to the ocean end of Pennsylvania avenue at Atlantic City.

The bill of complaint presents several grounds for the restraint, based upon restrictions expressed in three different deeds under which the complainant contends that he has a status which entitles him to the relief which he asks.

This case was considered on the hearing of an application for a preliminary injunction, in which an opinion was given on most of the points raised by the pleadings. It is reported in 63 N. J. Eq. (18 Dick.) 674.

The same questions here presented against the building of the same lateral addition to the defendant's pier were also much more elaborately argued in the cause wherein Atlantic City was the complainant against the New Auditorium Pier Company, seeking to enforce the covenants of the boardwalk deed of April 30th, 1896, made to Atlantic City by Charles Evans, Richard Loper and others. That case is reported in 63 N. J. Eq. (18 Dick.) 644. This case has also been heard on final hearing and an opinion given to the same effect.

This final hearing of this cause is on substantially the same lines as were presented in those cases. Almost all the proof is documentary and was before the court at the preliminary hearing. A stipulation as to the facts agreed upon between the parties covers nearly the same ground as the affidavits annexed to the bill and the answering affidavits of the defendant, which were used at the preliminary hearing.

In the bill of complaint Mr. Evans bases his right to a restraint upon his status under three several deeds, set out or referred to in the bill. The first deed was made by Charles' Evans to Atlantic City on January 2d, 1890. It grants an easement for a boardwalk at the ocean edge with an attending covenant restraining the erection of any buildings oceanward of the boardwalk. The second deed was made by Charles Evans to Bichard E. Loper on July 22d, 1895; conveys a lot of land opposite Mr. Evans’ hotel on Pennsylvania avenue, at the ocean front, and imposes on the grantee a covenant that he and his assigns should never erect on the premises granted any house or building nearer the line of Pennsylvania avenue than twenty-seven feet from the property line. The third deed is what has been described as the boardwalk deed or covenant, dated April 30th, 1896, made by Charles Evans and Bichard E. Loper (and many others, owners of the ocean front) to the city of Atlantic City. This deed creates the easement of way (sixty feet wide) of the present new steel boardwalk along the ocean front of Atlantic City, with restrictions against the erection of any building on the ocean side of the boardwalk, except that an owner may build on his property a pier, provided the same is one thousand feet long and is built of steel or iron.

The claims of the complainant, Evans, under the first and second deeds above referred to, are fully discussed in the two opinions above cited, especially in 63 N. J. Eq. (18 Dick.) 662 et seq., citing cases on the subject. When those deeds were made Evans had no title to the lands lying below high-water mark. The defendant’s proposed construction, which is now challenged, is located below high-water mark. Evans could not charge the lands which he did not own with restrictions as to their use. The rule holds good when a riparian owner, who has not acquired the state’s right to lands lying below high-water mark, attempts to restrict the use of such lands. The decisions on the question declare that an attempted charge by such a riparian owner does not bind the lands lying below high-water mark when the state shall have subsequently granted them to another person. See third syllabus, 63 N. J. Eq. (18 Dick.) 645.

The complainant, respecting the restriction against erecting buildings within twenty-seven feet of Pennsylvania avenue, contained in the deed, Evans to' Loper, of July 22d, 1895, though admitting that the deed did not convey the lands on which the defendant is building, yet insists that since that time there has been a natural accretion which has carried the high-water mark of the lands conveyed further into the ocean; that this accretion has taken Pennsylvania avenue with it by operation of law, and that the restriction on the lot originally conveyed is also extended over the new accretion bordering on that avenue. The claim is in my view not sustainable. It is within the rulings above referred to, which hold that the restriction imposed is limited to the lands which the grantor owned when the deed was made, and that he cannot, as riparian owner, impose an easement upon the state’s land lying under water in front of his own, which shall bind the state’s subsequent grantee.

The complainant’s position regarding the third conveyance, the boardwalk deed or covenant of April 30th, 1896, stands on very different basis. He is an owner of beach front bordering on the boardwalk. His lands presently enjoy the benefit of the boardwalk, the use and value of which are threatened by the defendant’s proposed structure, which is a step to shut in the boardwalk from its sea view, for if the defendant company may build on the ocean side, parallel with the boardwalk, so may every other owner, and its whole distinctive attraction may be thus destroyed. Mr. Evans was also one of the co-grantors who joined in the boardwalk covenant of April 30th, 1896, giving Atlantic City the easement over his portion of the way. Mr. Eichard E. Loper (then the owner of the locus in quo by purchase from the State of Kew Jersey by his deed from the riparian commissioners, dated August 39th, 1895) joined with Mr. Evans and others in the covenants of April 30th, 1896. So did Joseph Brady, one of the grantors of the defendant company. Each of these co-grantors gave up that part of his own land which was covered by the boardwalk strip in consideration of a like gift made by his co-grantors. The attending covenants, securing light, air and view, were obtained for a like consideration. It was a general scheme of public improvement in which all participated. Its form was a covenant with Atlantic City, but in fact it was a gift by the co-grantors to the public and to each other. Atlantic City paid, nothing to the grantors, but it spent large sums in building the boardwalk.

All the values were given by the grantors. No one grantor, nor anyone claiming under him, having accepted the benefits oí the others’ gifts, can be permitted to destroy its value in an essential particular, as the defendant company now seeks to do.

Its Auditorium pier is built immediately contiguous to the boardwalk, using it for access to its Auditorium building.

Any co-grantor who joined in the gift of the easement has a status■ to enforce the general scheme arranged and perfected by it.

The defendant contends that there is no proof of a general plan, no meetings of owners, no conference or association for any general object.

It seems to me that it is impossible to read the boardwalk covenant deed and follow the course of its lines for the several miles of its length over dozens of ownerships at the ocean edge without perceiving, on the face of those covenants, every indication of a common purpose on the part of the various owners to contribute to the creation of a public promenade at the beach front with free light, air and ocean view.

The other questions raised in these cases are discussed in the opinion filed at the same time with this one in the case of Atlantic City v. New Auditorium Pier Co., ante p. 284, on final hearing.

I will advise a decree for the complainant under the provisions of the boardwalk covenant of April 30th, 1896.