273 Pa. 76 | Pa. | 1922
Opinion by
Defendant appealed from a decree directing removal of buildings and obstructions in the form of excavating tools, equipment and machinery erected and being on that part of its property No. 1415 Spruce Street, Philadelphia, lying north of an indicated building line, located at a distance of forty-eight feet north from the northerly side of Spruce Street and perpetually enjoining and restraining it from erecting on that part of its premises any building, part of building, structure, or other obstruction whatsoever, subject to exceptions mentioned.
Plaintiff is owner of No. 1417 Spruce Street, adjoining the premises of defendant, and both claim title
This restriction was recited and referred to in each subsequent conveyance down to 1920, at which time defendant took title, the only difference being that deeds bearing date from 1839 to 1868 referred to buildings “then thereon erected” while that of 1871 and those subsequent to that date down to the conveyance to defendant referred to the north line of the building “now thereon erected.” There is no denial of the continued existence of the restriction, the dispute being as to the location of the north line of the building as it existed in 1839.
Plaintiff offered in evidence an official plan of defendant’s house and lot made in 1920 and showing the rear line of the building standing at that time forty-eight feet north from the north side of Spruce Street and followed the offer by proof that within the memory of witnesses, which in one case extended back to 1860, the same wall had been standing and at no time since had there been a building north of that line. Corroborative of this the architecture and manner of construction indicated the buildings on both lots were quite old. There was also offered in evidence a deed from John McCrea, the common grantor, to Edward King, plaintiff’s predecessor in title, dated August 8, 1839, less than three months after No. 1415 was conveyed to defendant’s predecessor, containing the following recital: “And the said John Mc-Crea afterward built three messuages on said lot, where
In addition to the foregoing evidence relating to the construction and continuance of the line of the north wall of the building, there is a recital in each deed in defendant’s chain of title referring to the line of the building “then” and “now” thereon erected. We find nothing to indicate the reason for the change of the wording unless, as suggested by the court below, the conveyancers, as time passed and successive transfers were made, recognizing that the time probably would come when parties might find it quite difficult to prove the buildings “then” erected were the same as the buildings “now” standing, sought to make the matter certain by changing the wording to the present tense. While the oral evidence does not clearly establish the identity of the wall subsequent to the change in the recital with that
The other question included in the statement of questions involved requiring discussion is whether the restriction was violated. Defendant contemplated the erection of a twenty-story office building on its adjoining property and the construction complained of was to be used in connection with the erection of that building. It consisted of an engine, derrick and compressor plant, the engine and plant being enclosed by small frame buildings. While it appears these were but temporary structures intended to be removed upon completion of the office building, the record is barren of testimony tending to show the time necessary for its completion. It might have been months or years. The contention, however, is that as the buildings were not permanent in character there was no violation of the restriction. This argument fails to give proper consideration to the language of the deed. It is not the usual form of building restriction but much broader, providing that “no building or part of a building, or other obstruction shall ever at any time hereafter” be erected upon the portion of the lot in question “except the fences and privies as the same are now erected.” Clearly the objects complained of were obstructions if not buildings and, though not in
The judgment of the court below is affirmed at the costs of appellant.