435, 108 N.Y.S. 945; O'Gallagher v. Lockhart, 263 Ill. 489, 105 N.E. 295, 52 L.R.A.,N.S., 1044. Except for projections of that kind the buildings have been constructed along the covenant line. There appear to be no substantial detractions from the objects sought to be attained by the covenant. The neighborhood still retains its attractive residential character. The fact that so many houses have been erected with the main body of the buildings located with reference to the building line and with open porches and bay windows extending over the line indicates a popular interpretation of the restriction to that effect, and if the projections were erected under an erroneous construction of the covenant, that fact is no evidence of an abandonment of the general scheme. Brigham v. H. G. Mulock Co., 74 N.J.Eq. 287, 290, 70 A. 287; Morrow v. Hasselman, 69 N.J.Eq. 612, 617, 61 A. 369; McGuire v. Caskey, 62 Ohio 419, 57 N.E. 53. Here the scheme intended by the covenant has been substantially carried out and prevails today. If the projections mentioned do violate the letter of the regulation, they have doubtless occurred through an interpretation acquiesced in by all concerned. No particular damage has been done to any one. Under these circumstances I can see no good reason in equity to deprive the plaintiffs of protection, now that they are threatened with a grievous breach, far different in character and degree, which will directly and seriously affect the enjoyment of their homes. Morrow v. Hasselman, supra; Dalstan v. Circle Amusement Co., 130 N.J.Eq. 354, 22 A.2d 245. There is a vast difference between bays and open porches projecting varying distances beyond the line and a store building erected over the entire restricted area of thirty feet to the line of the street.
The doctrine of waiver pro tanto is also invoked. Claiming that the projections on Lamont Street of porches, etc., do constitute violations of the covenant, the defendants insist that they are entitled to build out into the restricted zone for at least fourteen feet, which the evidence shows is the greatest projection beyond the line. However, I do not think the facts of this case can fairly justify the application of that doctrine, even if bays and porches do constitute violations, which I doubt. No comparison can be drawn with such extensions and a store building jutting 14 feet over the line. One does no real damage; the other would inflict serious damage. The defendants would gain much; the plaintiffs would gain nothing and lose much.
Next, it is argued that conditions have so changed as to render it inequitable to enforce the covenant. This is quite kindred to the first contention, and the reasons given in disposing of the first point can be applied with equal force in rejecting the second. The objects intended by the covenant still prevail on Lamont between 11th and 13th. No change has taken place there to materially impair the object and intent of the covenant. Jameson v. Brown, 71 App.D.C. 254, 109 F.2d 830; Castleman v. Avignone, 56 App.D.C. 253, 12 F.2d 326. Columbia Heights is far too large an area to treat as one neighborhood in dealing with these questions.
It is also contended that to enforce the covenant would impose a great hardship on the defendants without any benefit to the plaintiffs -- in other words, that it will not be detrimental to them. In my opinion this argument cannot be supported by the facts. The evidence convinces me that there would be a substantial injury. The building from the viewpoint of the plaintiffs on Lamont Street will be an eyesore. Light and air will be reduced. The street will in some measure lose its present attractive appearance and its residential character. All this, I think, will clearly appear from a study of the photographs in evidence -- possibly better by an inspection of the locale. Beyond all those disadvantages, probably the worst is that this breach, if allowed to stand, will become an opening wedge for further violations. If the line can be broken at the corner, it can, with equal justification, be broken at other points along the street. Can it be doubted that to extend a dwelling on Lamont Street between 11th and 13th out to the street line would be a serious damage to other dwellings in that block?
Another contention is that plaintiffs failed to act with due diligence, and therefore are estopped from complaining. However, I think the evidence shows reasonably prompt action on their part. It is not to be expected that they would stand on guard against possible violations of the building line. When their attention was finally attracted to preparation on the ground, in laying of footings, etc., this was hardly sufficient to indicate the erection of a building on the prohibited area. I gather from the evidence that their attention was not attracted to the building of the walls or piers within the 30 foot zone until about the middle of October. It necessarily took time to call a meeting of neighbors and agree upon the course of action which resulted in the employment of an attorney and the filing of this suit. Certainly there was no intentional acquiescence, and having in mind the many incidental details leading to the suit, it cannot be said there was any laxity by the plaintiffs. Group action necessarily takes more time than individual action. In a case of this sort it is unreasonable to look for separate action by aggrieved persons. The trouble and expense is usually too great for a single home owner to assume. Moreover, it must be borne in mind that the defendants, although well aware of the covenant, deliberately designed to ignore it. Accordingly, they began the work without giving interested property owners any prior notice of their intentions. With that determination, it seems manifest that only an injunction would halt them, for after the suit was filed they continued the work unabated until some time later when the motion for a preliminary injunction was heard and decided.
In my opinion the plaintiffs are entitled to a judgment enjoining further construction within the prohibited zone and requiring removal of so much of the structure as now stands back to the front wall of the adjoining building, which it is conceded is on the 30 foot restriction line. I request counsel for plaintiffs to prepare appropriate findings, conclusions and judgment in conformity with this opinion and present them for signing without delay.
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