Zipp v. Barker

We are of opinion that, as the defendants’ structure was erected before the application for an injunction, the defendants should not be compelled to remove it till after a trial of the action; but, that there may be no mistake as to our view of the merits of the action, we will state that in our judgment the fact that the street has altered from a residential street to a *326business street is no ground for refusing to enforce the covenant. The effect of the covenant was practically to widen a 50-foot street into an 80-foot street. This may be as advantageous where the property fronting on the street is used for business purposes as where it is used for residences. Whether this be so or not, the parties covenanted for an 80-foot street, and persons claiming under that covenant are entitled to its benefits, unless a common course of action by the parties in interest shows that they have abandoned the maintenance of its conditions. This question should be left to the trial of the action, and not determined on affidavits.

The order appealed from should be affirmed, with $10 costs and disbursements, to abide the event of the action.