67 Pa. Super. 527 | Pa. Super. Ct. | 1917
Opinion by
The court below refused to grant an injunction, and dismissed the plaintiff’s bill seeking to enjoin the defendants from erecting or placing railroad tracks, rails, ballast and ties, or any other buildings on lots owned by them, alleged to be in violation of building restrictions and covenants set out at length in the title of the defendant.
The plaintiff is the owner of two adjoining lots, having a frontage of 150 feet on the northern side of California avenue, in the City of Pittsburgh. Two adjoining lots are owned by the Pittsburgh Railways Company (the legal title being vested in W. B. Carson), having a frontage of 100 feet on the same avenue. These lots extend northward 140 feet to an alley. The deeds by which the respective parties acquired and now hold title contain the following building restrictions, set out at length in the deeds from the Ridgeview Land Company, and are now binding on the present holders of the title, as follows : “The above described lots of ground are conveyed by the party of the first part, and purchased and accepted by the party of the second, for himself, his heirs and assigns, subject to the covenant and condition running with the land, and part of the consideration hereof, that no dwelling house or other building of any kind, shall ever be erected or placed on said lot within twenty (20) feet of the line of California avenue, but that a space of twenty (20) feet, as aforesaid, shall always be left open and5clear of all buildings, or parts of buildings
The railways company being the owner of the corner lots (39 and AO), at California avenue and Wynhurst stréet, declared their purpose to change the grade of these lots-so as to be eight (8) feet below the present elevation of plaintiff’s adjoining lots, and to “place thereon, in the form of a loop, tracks over and along which car's-may be operated and allowed to stand; said tracks to be laid on ties supported by ballast, and said cars to be operated in- the usual manner by the use of poles, wires and electricity,” so-as-.to be a part of the defendant’s general system of street railways service. The street railways company purchased lots 39 and 40 from Charles- W. DahTinger, at a time when1 there was of record an agreement between Dahlinger and Dewar, this plaintiff, and other-owners of adjoining property, dated- October 16, 1894, recorded June 11, 1895, and of which they had actual knowledge, as follows: “Whereas, Lucy E. Meyer, of the City of Allegheny, County of Allegheny and State of Pénnsylvánia is the owner of a certain lot in the Grande Pointe Plan of Lots recorded in Plan Book, Yol. XII, pages 58 and 59, situate on- the northeasterly side of California Avenue, Allegheny, Penna.
“And Whereas, we the undersigned own adjacent and adjoining lots upon the same side of said street. And Whereas, we are desirous of having all buildings hereafter to be erected upon our said lots to- be built a uni
“Now Therefore in consideration of said Lucy Meyers erecting upon her said lot buildings which she is about to erect at the distance aforesaid from* the street or avenue aforesaid, and in consideration of the premises, We' the undersigned, our heirs and assigns, hereby agree' not to build or erect or suffer to be built or erected a building of any character whatever in that portion of our said lots lying between said avenue and the building line herein provided for.
“In Witness Whereof, we the said parties to this agreement have set our hands and seals this 16 day of October, A. D. 1894.”
Signed by Chas. W. Dahlinger (defendant’s predecessor in title), John Dewar (this plaintiff) and eight owners of property in the block.
It must be conceded that the use to which the railways company intend to apply these lots (39 and 40), was not reasonably in contemplation of any of the parties interested in the original plan of lots, or when the building line was fixed- at forty (40) feet distant from the street. The purpose at that time, as expressed in the agreement between Lucy E. Meyer and Dahlinger et al., was that all buildings hereafter to be erected should have a uniform frontage.40 feet distant from the street, and each of the then owners agreed not to build, erect or suffer to be built or erected a building of any character whatever, in that portion of the lots between said avenue and the building line provided for. A common sense construction of this agreement could mean only that this space between the building line and the avenue would be free and unobstructed, whether by building of any design or other encroachment to interfere with the view, passage of air, or to effect the uniformity of the common undertaking. It was intended as a residential section. The original reservation provided, by deed July 1,1892, “That no dwell
It is conceded that the language of a deed should be interpreted in the light of the apparent object or purpose of the parties and of the conditions existing when made. Murphy v. Ahlberg, 252 Pa. 267. The only question is, whether the restriction is to be interpreted to prohibit the erection and maintenance of poles, wires and tracks for use of moving and standing street cars within this restricted space. The natural grade of the lot is materially changed to adapt it for street car purposes, and the adjoining property is protected by a concrete retaining wall. While this of itself may not interfere with light or view, it is certainly a very marked change in the front yard effect of residences fronting on California avenue, and is to be considered with the other changes suggested by the railways company which implies the erection of lióles 20 feet high, a system of over-head wires, surface tracks on which modern street cars, 11 to 12 feet high and 45 feet long, are entitled to pass or stand during any hour of the day or night, not only obstructing view, but introducing necessary noises caused by the use of the street railway.
The object to be secured was to have a clear, unobstructed space 40 feet wide, and to have it encumbered with the suggested objects, Avould defeat the very purpose of the restriction. Restrictions are to be construed most strongly against the grantor. They should also be conformable if possible, to the letter and the obvious intent of the grant. All rules of construction are simply means to a given end, by those methods of reason which experience has taught are best calculated to léad to the inten
By whatever name this development may be called, it is reasonably within the intended prohibition of the grant, and is in violation of the original restriction, as well as that of the agreement of Meyer v. Dahlinger et
For the reasons above stated, the decree entered by the court below is reversed, the record is remitted and bill reinstated and to be proceeded in according to the rules of equity practice in the courts of Pennsylvania.