Every evening, Wilmington daily commercial., 1920-04-30
MUST KEEP GARAGE
OFF STREET LINE
Chancellor Curtis Issues Injunc-
ton Based on Market Street
Restriction.

An Injunction against the erection OF a
garage ON Market street between twenty
fourth and Iwenty-lifth, at less distance
than 20 feet back of the street line
was issued by Chancellor Charles NJ.
Curtis in the Court Of Chancery this
morning, in the case of Alexander Rodgers
vs.. Victoria Iwolak.
William W.. Knowles and Wilbur l.,
Adams appeared for the complainant and
Frank l.. Speakman and Philip l..
Garrett for the defendant.
Joseph Tatnall was the owner of | 500
feet of land in Market street, between
Twenty-fourth and Twenty-eiphth, it
was brought out, and in 1879 sold the land
between Twenty-fourfh and Twenty
sixth to various persons. In each deed
it was provided that no building should
be erected at less distance than so feet
from Market street. to be kept an open
ornamental space for the free passage
of light and air forever" This provision
was not contained IN deeds for other
plots OF the tract, it was said.
The compla inant AMI defendant own
adjoining lots IN Market street, between
Twenty-fourth and Twenty fifth. The
defendant, it is said, had started the
building Of garage on the city building
line The defendant claimed that the
original restriction had been abandoned
and relinquishcd and that no other valid
restriction binding on the defendant had
taken place
In his decision the chancellor set forth
y building restriction may be modified
or terminated by consent Of all who are
affected by if. In the absence of an OK
press agreement ON the subject, abandon
ment in any particular ease Is matter TO
Il a. si4~ Il.
Uniformity of action IN disregard or a
restriction modifics il pro tauto. or dis
charges it entirely. depending on the
character of the acts done.
There is however IN this case, such an
agreement Of owners affected by the
original restriction as 10 make il unneces-
sarY TO consider implied alterations Of
restrictions. After making the agreement
In 1900 I'm that year there was an agree
ment between Potter and other owners Of
land in the square on n twenty-foot re-
striction lneither Potter nor anyone claim
ing under him. can disregard the twenty
foot building line restriction.
1T is established that the twenty foot
building restriction is binding on the
defendant as to the land on which the
defendant intends to erect the garage
The fact that the complainant did not
complain of the structure erected by
Potter Potter had erected on the city
building line hotTbuse, since razedj be-
fore the complainant acquired his land
does not necessarily deprive him Of a
right 10 enforce the restriction as against
the defendant and the structure she desires
TO build. for Potter's violation may not
have materially affected the complainant.
The class cited by the defendant to the
effect that when the creator Of a building
line restriction acdulesces in violations
of II bv owners Of q considerable proportion
of the land affected. by the restriction, it
is inealntabe for him to enforce il, do
not apply here
Concluding, the chancellor said: Rely
ing on the basic element In injuncfive
relief against violations Of a building line
restriction, viz; that il is ineduitable to
permit one TO violate such a restriction
imposed on the land by former owner
for the mutual benefit of owners OF the
several lots located within a definite area,
the defendant here should not be per-
mitted To violate the restriction validlv
established originally by Joseph Tatnall
on land owned BY him and now by the
complainant and defendant and properly
and vahdly modified by an agreement
between their predecessors in title as TO
the land held by the parties 70 the agree
meat at the time of the making thereof.
TIE complainant Is, therefore, entitled
to decree enioinlng the defenda ut
from erecting the building at less dis
tance than 20 feet from the northeTly
side of Market street