WALTON et al.
POPLOS et al.
Action by Francis L. Walton, Jr., and others, against Charles M. Poplos, and others, for injunction to restrain defendants from alleged violation of restrictive covenant in relation to deeds to residential property in development area which gave to plaintiffs, and other grantees, right to use all walkways in development area. The Court of Chancery in and for New Castle County, Bramhall, Vice-Chancellor, held that erection of latch or bolt gates across walkways by defendant grantees was violation of restrictive covenant and obstruction of easement, and inconvenience to dominant tenement was not so slight in comparison to inconvenience to servient tenement as would permit maintenance of such obstruction.
Order in accordance with opinion.
[32 Del.Ch. 293] Complaint for Injunction by plaintiffs against defendants arising out of alleged violation by defendants of certain restrictive covenants relative to the use of walkways in a real estate development known as ‘ Elsmere Manor’, New Castle County, State of Delaware.
The case was before the court for final hearing upon complaint, answer, affidavits, stipulation of facts, oral testimony and exhibits.
Clement C. Wood (of Young & Wood), Wilmington, for plaintiffs.
[32 Del.Ch. 294] W. Thomas Knowles (of Knowles & Allmond), Wilmington, for defendants.
The plaintiffs and defendants are all owners and occupiers of land in a development known as ‘ Elsmere Manor’, New Castle County, Delaware. All of the properties in this development were originally purchased from one owner, who had the development laid out in lots, under a general plan of development. The properties were conveyed to the different owners under and subject to certain restrictive covenants, one of which related to the use of certain walkways and driveways appurtenant to the particular lot and leading from that lot to a general parking area as shown on the plot. No parking area or garage was provided for on the individual lots. The restrictive covenant pertinent to this case is as follows: ‘ Together with the exclusive use of a certain garage compound or parking area, designated on the above mentioned Plan as No. 147; and the use in common of all walkways and driveways appurtenant to the above described lot of land and parking area, as indicated on the said Plan and as fully set forth in a certain deed recorded in Deed Record R, Volume 43, Page 580, as amended by an agreement recorded in Deed Record N, Volume 44, Page 23; subject, however, to the payment of a proportionate share of the expense of keeping said parking area, walkways and driveways in good order and repair.’
The only entrance to the rear of the houses in this development is through the walkways leading from different driveways which enter the development from one of the streets surrounding it. There are approximately six driveways in the whole development, which sometimes makes it necessary for one who desires to go to the rear of a particular house or lot to pass through, by means of said walkways, the properties of a number of lot owners, in some cases, amounting to eight or nine owners.
According to the testimony there are three hundred and sixty-three homes built on this development. In order to secure more privacy for themselves and their families, approximately sixty of the owners thereof have erected either [32 Del.Ch. 295] fences or gates on the dividing lines of their properties across the right-of-way. In the cases of the defendants in this suit at least one or more had fences erected across the right-of-way at the time of the institution of these proceedings. The others had swinging gates, some with bolts or automatic latches and some with both bolts and latches.
Plaintiffs instituted this action to compel the defendants to remove the fences and gates across the walkways, alleging that they obstructed the way given to plaintiffs under the restrictive covenants in their deeds. Those fences which may have been erected by any of the defendants, as far as the same affected the walkways, were removed after the institution of this action and swinging gates erected on the walkways.
Under a preliminary motion in this suit I previously held that this was what is known as a ‘ spurious class action’ and that the action could be for the benefit of any persons occupying any of the premises in question who might wish to intervene as a party to this suit. ...