This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The right to enforce a restrictive agreement may be lost by laches or acquiescence,3 especially when this results in the making of expenditures by defendant.4 And if the promisee or his successor in title, by his conduct, in any way induces a violation of the agreement, he cannot ordinarily complain thereof.5 That the agreement has but a limited time to run has, in connection with other circumstances,0 been regarded as a consideration adverse to its enforcement.
2. Hudson v. Cripps (1896), 1 Ch. 265; Alexander v. Mansions Proprietary, 16 Times Law Rep. 131; Gedge v. Bartlett, 17 Times Law Eep. 43; Jaegei v. Mansions, Limited, 87 Law Times, 690.
3. Leaver v. Gorman, 73 N. J. Eq. 129, 67 Atl. 1ll; Savers v. Collyer, 28 Ch. Div. 103.
A delay of ten weeks before consulting an attorney was regarded as not necessarily precluding relief, no prejudice resulting to defendant. Stewart v. Finkelstone, 206 Mass. 28, 92 N. E. 37. And see Woodbine Land & Improvement Co. v. Riener, - N. J. Eq. - , 85 Atl. 1004; Star Brewery v. Primas. 163 111. 652, 45 N. E. 145; Orne v. Fridenburg,
143 Pa. 487, 22 Atl. 832, 24 Am. St. Rep. 567.
4. Bridgewater v. Ocean City Ass'n, 85 N. J. Eq. 379, 96 Atl. 905; Smith v. Spencer, 81 N. J. Eq. 389, 87 Atl. 158; Whitney v. Union Railway Co., II Gray (Mass.) 359, 367; Kelsey v. Dodd. 52 L. J. Ch. 34.
5. Stott v. Avery, 156 Mich. 674, 121 N. W. 825; Union Trust & Realty Co. v. Best, 160 Cal. 263, :16 Pac. 737. De Gama v.
D'aquila, - N. J. Ch. - , 101 Atl.
6. Loud v. Prendergast, 206 Mass. 122, 92 N. E. 40; Page v. Murray, 46 N. J. Eq. 325, 19 Atl. 11; Mcclure v. Leaycraft, 183 N. Y. 30, 5 Ann. Cas. 45, 75 N. E.
In the case of restrictions imposed in pursuance of a general plan, that the originator of the plan, the common grantor, acquiesces in, that is, fails to take legal action to prevent, substantial infringements of the plan by some of his grantees, has been regarded as showing an abandonment by him of the plan, precluding him from subsequently enforcing the restriction as against others.7 And one to whom he conveys a lot subject to such a common plan of restriction has occasionally been regarded as precluded from enjoining the violation of the restriction if he acquiesced in a violation thereof by another which substantially affected his property,8 though his failure to object to a violation by the owner of one lot does not affect his right to object to a violation by another, if the former violation, by reason of the distance of the lot, or for some other reason, did not affect the enjoyment of his lot.9 In one or two states the acquiescence by one
961; Page v. Murray, 46 N. J. Eq. 325, 19 Atl. 11.
7. Scharer v. Pantler, 127 Mo. App. 433, 105 S. W. 668; Chelsea Land & Improvement Co. v. Adams, 71 N. J. Eq. 771. 66 Atl. 180, 14 Ann. Cas. 758; Ocean City Land Co. v. Weber, 83 N. J. 476. 91 Atl. 600; Roper v. Williams, Turn. & R. 18. Peck v. Matthews, L. R. 3 Eq. 515; Sobey v. Sains-bury (1913), 2 Ch. 513.
But his acquiescence in violations of a like covenant in deeds of neighboring lots has been held not to prevent his enforcement of the covenant, if these violations occurred before the covenant was made. Sherrard v. Murphy, 193 Mich. 352, 159 N. W 524.
8. Curtis v. Ruben, 144 I11. 88, 91 N. E. 84; Ewertsen v. Gersten-berg, 186 I11. 344, 57 N. E. 1051, 21 L. R. A. 310; Helmsley v. Marlborough Hotel Co, 62 N. J. Eq. 164. 50 Atl. 14, 63 N. J. Eq. 804, 52 Atl. 1132; Meany v. Stork, 81 N. J. Eq. 210, 86 Atl. 398; Ocean City Ass'n v. Chalfant, 65 N. J. Eq. 156, 55 Atl. 801, 1 A. & E. Ann. Cas. 601.
9. Alderson v. Cutting, 163 Cal. 503, 126 Pac. 157; Johnson v. Robertson, 156 Iowa, 64, 135 N. W. 585; Barton v. Slifer, 72 N. J. Eq. 812. 66 Atl. 899. Bowen v. Smith. 76 X. J. Eq. 456, 74 Atl. 675; Rowland v. Miller, 139 X. Y. 93, 22 L. R. A. 22, 34 X. E. 765; Mcguire v. Caskey, 62 Ohio St. 419, 57 X. E. 53; Payson v. Burnham, 141 Mass. 547. 6 X. E. 708; Sayles v. Hall, 210 Mass. 281, 96 X. E. 711; Schadt v. Brill, 173 Mich. 647, 139 X. W. 878, 45 L. R. A. (X. S.) 726; Stewart v. Stork, 181 Mich. 408, 148 N. W. 393 (semble).
2 R. P. - 17 grantee in the violation of the common restriction by another, even though such violation be substantial, does not, it seems, preclude the former from subsequently asserting the restriction as against a third grantee,10 while in England the view has been adopted that, in order that acquiescence in other violations shall preclude equitable relief, such violations must have been of a character which would prevent the attainment of the purpose which it was sought to attain by the execution of the agreement, that is, uniformity in the improvement of the various lots, or the preservation of the general character of the property considered as a whole.11
Acquiescence in a breach of a minor character would not, in any state, it seems probable, constitute grounds for denying relief against a breach of a much more serious character,12 and likewise former breaches and acquiescence therein have been regarded as insufficient grounds for withholding relief when they resulted from a mistaken construction of the agreement.13
One cannot obtain relief in equity against the violation of a restrictive agreement entered into in pursuance of a general plan if he himself is guilty of a substantial breach of the same restriction.14 But the fact that the plaintiff has himself committed a minor breach of the agreement will not disentitle him to an injunction against a breach by another of considerable magnitude.15
10. Bacon v. Sandberg, 179 Mass. 396. 60 N. E. 936. Codman v. Bradley, 179 Mass. 396, 60 N. E. 936; Andre v. Donovan, 198 Mich. 256, 164 N. W. 543; O'gallagher v. Lockhart, 263 111. 489, 105 N. E. 295, 52 L. R. A. (N. S.) 1044. And see Misch v. Lehman, 178 Mich. 225, 144 N. W. 556; Lattimer v. Livermore, 72 N. Y. 174; Yeomans v. Herrick, 178 Mo. App. 274, 165 S. W. 1112.