146 A. 889 | Pa. | 1929
Argued May 13, 1929. The owner of a tract of land, which included the properties of plaintiffs and defendants, divided it into large lots and sold them to various purchasers. The deeds do not refer to a preëxisting plan of the tract, nor, so far as appears, was one recorded; but even a most casual reading of the descriptions in the deeds, will convince any one that the lots must have been sold according to a plan of some character. The owner's purpose was to have the tract improved by detached residences and their necessary stables and garages only, each to have an abundance of air and light; and this was accomplished by providing, in the deeds, that but one dwelling house should be erected on each lot, to cost not less than a specified large sum, and to be built at stated distances back from the established building lines; that certain classes of buildings should not be constructed on the properties; and that stables and garages should not be closer than a given distance from either the residence on the lot or the building line of the street upon which it fronted. In this case, we are concerned only with the requirement that nothing shall be constructed within a certain distance of the building line.
Plaintiffs' lots were sold first, their deeds providing that neither the grantees, nor their heirs and assigns, should ever erect any building upon "the thirty five feet in depth of the said hereby granted lot fronting on said Coulter Street, measured from the building line thereof." All the other properties in the block, on that side *250 of the street, were similarly restricted. Defendants' lot, which was directly opposite to plaintiffs', was sold subject to the same restriction, except that the recession was required to be only thirty feet. All the other properties within the block, on that side of the street, were likewise restricted, save that in two instances the recession was required to be thirty-five feet. In defiance of the restriction in their deed, defendants determined to erect a garage out to the building line of their property, and the decree of the court below, from which this appeal is taken, enjoins them from encroaching on the thirty feet strip specified in the restriction.
Defendants contend that because plaintiffs purchased first, they have no right to enforce the restriction in defendants' deed, there being no formal plan from which it could be inferred that there was an implied obligation, upon the part of the common grantor, to impose on the lots subsequently sold, the same general restriction as was inserted in the deeds for plaintiffs' lots. We are not concerned, however, with the duty of the common grantor, nor with determining whether or not defendants would have been impliedly bound if he had not inserted the restriction in their deed, for it was so inserted. Nor is it a matter of any particular moment that the deeds do not refer to a plan on which the lots were plotted, and that no such plan was recorded. In Clark v. Martin,
This conclusion has never since been doubted by us; indeed, it was cited with approval in Wimer v. Yellin,
The only other point suggested by the statement of questions involved (which limits the scope of the appeal: Whalen v. Smith Fireproof Construction Co.,
The decree of the court below is affirmed and the appeal is dismissed at the cost of appellants.