#### Dennis Perkins, plaintiff, *vs.*Thomas B. Coddington and Almira, his wife, defendants.

1. The enforcement in equity of the specific performance of mutual agreements between owners of different parcels of land, whose value or use may be increased or benefited by such performance, does not arise from their being covenants running with the land, nor is it confined to cases, where alone an action at law would lie for its violation, (as being an interruption of an easement in lands,) if it were a subject of grant.

2. Where each of two parties to an action derive their title to one of two adjoining lots of land fronting on a city avenue, by conveyances from the same *648grantor, which, by such conveyances, are expressly subjected to covenants previously entered into, by such grantor and those under whom he derived title and the owners of adjacent and opposite pieces of land on the same avenue, mutually, for leaving a space in front of such lots unbuilt upon, the plaintiff can enforce such covenant against the defendant, although his lot was first conveyed to him by their common grantor.

3. Such a covenant, that “ not less than five feet in front of each of several lots of land,” in a city avenue, should “ forever be an open space or court,” accompanied by the further covenant ” that it should not, at any time thereafter, be appropriated or occupied by any edifice or building or wall, nor be in any manner built upon or obstructed *otherwise*than by the necessary steps for entrance, platforms, pedestals, and iron fences or railings, connected therewith and enclosing the same, and the foundations and copings upon which such iron fences or railings might be placed,” is only to he construed as one substantially to increase the width of such avenue five feet, by not building on such space any structure resting on the ground, except those enumerated; so that any mere projections from the front wall of a dwelling house built on either of said lots, such as blinds and their fastenings, cornices over the windows, or doors or beneath the roof, or even balconies at windows supported on projecting brackets, would not be a violation of such a covenant.

*4.*So *held*where a balcony had been constructed, projecting from the first floor of a dwelling house on one of such lots, supported by brackets inserted in its front wall, and having three enclosed glazed windows therein.

5. A party who seeks to enforce such a covenant, must not himself have been guilty of any violation of it.

(Before Kobbetsoit, Oh. J. at special term,

November, 1865.)

This was an action to enforce a covenant by and between the several owners of different adjoining pieces of land butting on Madison avenue, in the city of New York, in regard to abstaining, in a particular mode, from the use of such land, or part thereof.

The plaintiff’s land adjoins that of the defendant, (Mrs. Coddington.) Both pieces were conveyed to them severally by the same person, (Mr. Sherwood,) that-of the plaintiff first; and in the conveyances to them, as well as those under which their grantor derived his title, they were made subject to such covenant, which was referred to therein.

Such covenant was originally entered into between the first owner of such land (Mr. Murray) and the first grantee thereof, (Mr. Paine,) in the conveyance whereof, it was contained and was mutual, the original owner still retaining adjoining land fronting on the same avenue. Such covenant was, in terms, *649“ that not less than five feet of the front of each of the said lots of land ” on the west side of Madison avenue, between Thirty-sixth and Thirty-seventh streets,” should “ forever be and remain an open space or court,” and should *“*not, at any time thereafter, be *appropriated or occupied*by any *edifice or building or wall,*nor be, in any manner, *built upon or obstructed*otherwise than by *the necessary steps for entrances, platforms, pedestals,*and *iron fences or railings connected therewith and enclosing the same,*and the *foundations*and *copings upon which such iron fences or railings may be placed.”*The parties to this covenant also agreed, in such conveyance, to insert in every future conveyance by them of any of said land owned by them, a similar covenant on the part of the grantees.

Subsequently to such conveyance, and in the succeeding month, the parties thereto entered into a precisely similar covenant with the owners of the land directly opposite, fronting on the same street.

Prior to the commencement of this action the defendants had begun to build a structure of stone.and glass, resting on the ground, projecting from the house owned by them, and standing on their land, occupying a large portion of the width thereof, for the purpose of making a bay window, which building extended from the main building four feet and a half outwards into the court yard reserved by such covenant.

When the plaintiff bought his house and land, the former also had some projections, more or less slight, over the space so reserved. The ashlar of the basement projected three inches; the base of two pilasters on each side of the front door nearly a foot; and their top about half that distance. The cornice over the front door projected two feet four inches ; the caps over the windows of the buildings one foot; cornices projected over the eaves two feet; the entrance to the front door was by means of steps supported by a solid wall which rose to within eight inches of the first story. Other houses in the same row had similar projections, and also balconies, which *650stood out three feet and a quarter, supported by brackets let into the wall, and enclosed by iron railings.

After this action was commenced, the defendants relinquished their original plan, and merely constructed a balcony of a hemi-hexagonal shape, resting upon two brackets inserted in the wall, and projecting from the main building about four feet six inches, over which, and resting upon its outer edge, were three walls of stone, with wooden sash frames and glazed sashes, roofed over and enclosing a space.

*O. F. Sandford*and *L. B. Woodruff,*for the plaintiff.

*S. P. Nash,*for the defendants.

Robertson-, Ch. J.

Besides grants of easements in a piece of land to the public by dedication, or to the owners of other lands by grant, the rights generally appertaining to the ownership of land may be subjected to the control of others, having no interest otherwise therein, than by covenants between the owners of such servient and such dominant tenements. For although at law such a covenant is only an executory contract, in equity it seems to be treated as executed and conferring rights, which may be enforced there by specific performance ; and even parol agreements of a similar kind have been enforced when mutual, and carried into effect by some of the parties thereto. *(Tallmadge*v. *East River Bank,*2 *Duer,*614. *S. C. on app.*26 *N. Y. Rep.*105. *S. C. sub. tit. Maxwell*v. *East River Bank,*3 *Bosw.*124.) And notwithstanding it could not be considered in the light of a *covenant running with the land, (Tulk*v. *Moxhay,*11 *Beav.*571,) inasmuch as it affects two separate pieces of land, yet it is not to be treated as a mere personal covenant in regard to either party, but may be enforced in favor of all who derive title from the covenantee to the dominant tenement or that for whose benefit such covenant is made, against all who take title from the covenantor to the servient tenement (or that whose use is restricted) with knowledge of such covenant. *(Mann*v. *Stephens,*15 *Sim.*377. *651*Tulk v. Moxhay,*11 *Beav.*571. 2 *Phillips,*574. *Whitman,*v. *Coies, 23 Eng. L. and Eg. 588 n. Hills v. Miller,*3 *Paige,*254. *Barrow*v. *Richard,*3 *Ed. Ch.*96. S. *C.*8 *Paige,*351. *Birdsall*v. *Tiemann,*12 *How. Pr.*551.) This doctrine seems to be established upon the principle that otherwise grantees of the covenantee would have no remedy at law by an action in their own name for damages, and the covenantee would only be entitled to nominal damages, after he had parted with his interest in the land to be benefited. *(Barrow*v. *Richard, ubi supra.)*Of course, in all cases where such covenants are specifically enforced, there must be a dominant tenement whose owner is to be benefited by their being kept, and it must be in a position to be so benefited ; otherwise the covenant would be merely personal. The reason, for enforcing rights arising from such covenants, is entirely distinguishable from that for protecting a legal easement against interruption, *(Brouwer*v. *Jones, 23 Barb.*153;) or the right of the public originating in a dedication, when infringed upon, *(Trustees of Watertown*v. *Cowen,*4 *Paige,*510. *Hills*v. *Miller,*3 *Paige,*254;) in both of which cases there is a remedy at law. The rights and obligations of the parties to such covenants being, even in equity, dependent entirely on their terms, and not on the amount of injury from any violation of them, parol evidence is unnecessary and inadmissible to show either great or slight injury from such violation. *(Steward*v. *Winters,*4 *Sand. Ch.*589.)

In the case before me, it is true the parties, although chargeable with notice of the original covenant, *(Coles*v. *Sims,*23 *Eng. Law and Eg.*588, *n.)*do not claim title to these lands under the covenantor and the covenantee .in the covenant in question, severally, but under a person who derived title from the latter alone. But the deeds to both of them are made *subject*to such covenants, although their common source of title parted with the land conveyed to the plaintiff before he had conveyed to the defendant; and, therefore, although not without some misgiving, I am inclined to think the plaintiff is entitled to enforce such covenant against the defendants.

*652Another difficulty presents itself in the.fact that thé plaintiff's house itself violates the original covenant, according to his interpretation of it; and it has been held that generally a party so situated would not be entitled to any relief in equity, *(Duke of Bedford*v. *British*Museum, 2 *M.*& *K.*552; *Roper*v. Williams, 1 *Turn. & R.*18; *Patching*v. *Dubbins,*1 *Kay,*1; *S. C.*23 *Eng. Law and Eq.*609,) upon the principle that he who seeks equity must do equity ; but in this case both parties derive title from the same person, and their rights and obligations towards each other depend entirely upon their dealings with him, and his conduct. At the time he sold the plaintiff his house, he had, if ever, already violated all the covenants entered into before he acquired title, and it must be held that so far as any relations were created between the parties who derived title from him, he intended to modify the original covenant to that extent; so that whatever rights third persons claiming title from the original covenantee might have against his grantees, as between each other the. rights of the latter should be modified by the actual state of the buildings, as the plaintiff could hardly have been required to take down projections already existing, and conveyed to him as they were.

The most difficult question remains, however, to be solved, as to the proper interpretation of the original covenant in reference to the projection completed by the defendants since the commencement of this action. That covenant provides, (1st.) That the five feet in front of the lots in question should forever remain an open space or court. (2d.) Should not be appropriated or occupied by either an *edifice or a buildiag or wall.*(3d.) Should not be either *built upon*or obstructed, otherwise than by such steps for entrance, platforms, pedestals and iron fences or railings connected therewith and enclosing the same, as might be necessary, and the foundations and copings upon which such iron fences or railings might be placed. The first question that presents itself upon the construction of this covenant is, whether by the five feet which is reserved to remain an open court, is meant superficial dimension of ground alone, or a like space in the air, reaching from such *653ground, to the heavens. If the latter, the defendants could no more occupy it permanently than they could the public high-. way, or even temporarily, otherwise than they could such highway ; but I think the subsequent part of such covenant confines such five feet to the ground — the *terra*firma—and its use. It declares that such court shall not be occupied by *an edifice,*or a *building or wall,*each of which words implies something not suspended in the air, but resting on the ground and erected upwards from it. And, finally, it provides that it should not be *built upon*or *obstructed*otherwise than by a certain kind of solid structure. The terms “ *built upon ”*seem to me conclusive as to the space intended being of the solid ground, and the exception of the *steps for entrance, and pedestals*therefrom (which are required to rest on the ground) more fully corroborates it. Particularly as the house owned by the plaintiff had at the time he bought it, steps resting on a solid wall reaching from the ground to nearly the first story. It is not difficult to suggest, according to the varying views and interests of parties, different general purposes or limitation of such right intended by such covenants. But where a covenant is so precise and elaborate as this, and its enforcement is in derogation of common right, a court can do no more than carry out the stipulation of the parties as they have expressed it. It would be too much to say that it was intended to have an unlimited sweep of air over, and access of light to, the whole of the five feet, along a smooth wall unbroken" by any projection, when there were already overhanging cornices, projecting ashlars and pedestals and a'massive structure for the support of the steps to the entrance of both houses, at the time of their conveyance. If any general purpose can be extracted from such covenant consistent with its special provisions, it must be merely that the width of .the street, so far as the main front wall of the house was concerned, should be increased five feet, and that the court yard thereby gained should not be *built upon*by any structure resting on the ground, except the entering steps and their appurtenances, but that blinds and their fastenings, and cornices projecting from or over the *654windows or door, or under the ropf, and even balconies, might be permitted, provided they were not a mere evasion of the covenant. Such seems to have been the practical construction given to it, and acquiesced in for a long time. And until better advised I can see no reason for interfering with the window finally completed.

But the plaintiff is entitled to a judgment perpetually enjoinining the defendants, as they have been temporarily enjoined, with costs.