259 Pa. 599 | Pa. | 1918
Opinion by
John Dewar and the Pittsburgh Railways Company are the owners of adjoining lots situated on the north side of California avenue, in the City of Pittsburgh. The frontage of the Dewar ground is one hundred and fifty feet and that of the railways company one hundred feet. The properties extend one hundred and forty feet northward to an alley. They form part of a duly recorded plan of lots, and the title to each of them is subject to the following covenant and condition running with the land, as part of the consideration therefor: “The above described lots of ground are conveyed by the party of the
While building restrictions are enforceable, they are not favored by the law, and covenants relating to them are not to be extended by implication: St. Andrew’s Lutheran Church’s App., 67 Pa. 512; Crofton v. St. Clement’s Church, 208 Pa. 209; McCloskey v. Kirk, 243 Pa. 319. The error into which the learned court below fell was in holding that the covenant in the railways company’s deed would be extended by implication if it' should be restrained from erecting or placing railroad tracks, rails, poles and ties on its lots. Under the pleadings and proofs, the question was not one of extending a covenant by implication, but was as to the meaning to be given to its express terms. The covenant in the railways company’s deed, read in connection with the agreement of October 16, 1894, is that the space of forty feet north from the line of California avenue “shall always be left open.” These words are to be interpreted in the light of the manifest object or purpose of the parties in using them: Meigs v. Lewis, 164 Pa. 597; Landell et al. v. Hamilton et al., 175 Pa. 327; Murphy v. Ahlberg et al., 252 Pa. 267; and the meaning and extent of the building restriction which were within the contemplation of the parties at the time it was imposed must prevail.
In view of three findings of the court below, which were not excepted to there, and cannot, therefore, be disturbed here, clear error was committed in dismissing plaintiff’s bill. After describing his lots and those of the defendant, the court proceeded to find as follows: “Both of said properties are in a residence district.” “In said forty-foot strip upon said lot next the plaintiff’s said property and commencing about seven or eight feet westwardly therefrom, the defendant, Pittsburgh Railways Company, proposes to install tracks (consisting of rails, ties and ballast), poles about twenty feet high
The assignments of error on this appeal are overruled, and the decree of the Superior Court is affirmed, at the cost of the appellants.