175 Pa. 500 | Pa. | 1896
Opinion by
The land at the southwest corner of 9th and Chestnut streets,
“ That all the buildings heretofore erected and now standing upon the said lot of ground hereby granted shall within one year from the date hereof be completely prostrated, and that he, the said Thomas C. Rockhill, his heirs or assigns, shall not at any time hereafter erect or build, or permit or suffer to be erected or built, on the .above described lot of ground, any buildings whatever other than privies, milk or bathing houses, walls or fences not exceeding nine feet in height from the surface of the curbstones immediately in front of the said lot on Chestnut street, according to the city regulation thereof, excepting a messuage on the Chestnut street front of the said lot not exceeding sixty feet in depth, with a piazza adjoining the same to the south for a staircase only, not exceeding twenty-five feet in depth, and a stable and coach house on the George street front of the said lot, which stable and coach house shall not be of a greater height nor extend in depth further north than the stable and coach house of the said Edward Shippen Burd, built and now standing upon the ground to the eastward thereof. Also upon this further condition, that the north or front wall of any building at any time hereafter to be erected or built upon the said Chestnut street front shall be built precisely on a line east and west with the northern wall of the western wing of the said Edward Shippen Burd house, built and now standing upon the lot of ground on the south side of the said Chestnut street between the said lot of ground and Ninth street; that is to say, at the distance of ten feet one inch and five eighths part of an inch from the south line of the said Chestnut street; also that the ground between the said north wall of the said building so-to be erected on Chestnut street and the south line of the said Chestnut street shall be forever left open for a public pavement, and footway free from every obstruction or incumbrance whatever, except steps, cellar doors and scrapers.”
The grantor continued in the ownership of the remaining part
" 1. The brick building on the rear of 908, fronting on Sansom street, for many years had not been used as a stable and coach house, but had been turned into a brush factory with a frame building attached, and in 1875 tills had been turned into a drinking saloon, and then was a building with three floors.
2. That to this building towards Chestnut street had been attached a brick addition.
8. That a pigeon hpnse and other buildings had been put upon the lot between it and the main building upon Chestnut street two feet higher than the nine feet stipulated for in the restriction.
There was some evidence that a bulk window had been constructed on the Chestnut street front, in violation of the restriction, and also that a fire escape had been constructed in front above the first story. As to the bulk window, it was conceded by plaintiffs at trial below, it had been there for more than twenty-one years before suit. Concerning the fire escape, as it
One of plaintiffs’ predecessors in title, J. F. Orne, in 1881, filed a bill in equity to restrain defendants from maintaining the buildings in violation of the restriction, and for an order on them to remove the same. The defendants, by answer, averred, the buildings on the lot were substantially the same as when the property was conveyed to them in 1875, and that at the date of filing the bill they had been in existence for a period of more than twenty-one years. A master was appointed to take testimony, find facts and suggest a decree. He found that prior ■owners of lot 908 had erected on the lot buildings in violation of the condition, and they had been there for many years before the equity suit was instituted, and, further, were occupied ■and used for purposes wholly different from those stipulated for. He further concludes that defendants should be restrained, and in accordance with his suggestion the court below decreed an injunction. From this, defendants appealed to this court, and in October, 1891, the decree was reversed and bill dismissed. The case is reported, Orne v. Fridenberg et al., 148 Pa. 487. The opinion is by Paxson, C. J., and holds, that as plaintiff was guilty of gross laches in enforcing his right, equity would not interpose by a restraining order. Many cases are cited as ■sustaining this decision, the sum of them being, as quoted by the chief justice from 2 High on Injunctions, 1159, that “ in conveyances of real property,' the courts require due diligence upon the part of plaintiff seeking the relief, and laches or acquiescence on his part in the violation of the restrictive covenant will ordinarily defeat his application. Indeed, equity requires the utmost diligence in this class of cases upon the part of him who invokes its preventive aid, and a slight degree of acquies
Although the principle of equity which justifies a chancellor-in refusing an injunction where the purpose of the restriction has been defeated by changes in the character of the neighborhood and the surrounding improvements is adverted to, the judgment is based on the first ground; the laches of plaintiff extinguished his right in equity. The opinion ends with this, intimation: “ While we think, for the reasons given, that the plaintiff is not entitled to an injunction, he may still sue at law and recover damages, if he can show he has sustained any.”
In June, 1893, more than a year and a half after this decree, the present plaintiffs brought this ejectment to enforce a forfeiture of the estate, because of the violations of the conditions of the grant heretofore noticed. A number of written points, were presented to the court below, among them the sixth, which asked, on the facts, which undoubtedly showed a technical violation of the conditions of the deed, a peremptory direction to find for plaintiffs, conditioned that the offending structures. should be removed within three months. The court declined to give the instruction prayed for, but submitted to the jury to find from the evidence whether the alleged breaches had continued for a period of more than twenty-one years before suit, brought to enforce the forfeiture; if so, then the plaintiffs could not recover; if their existence was within twenty-one years, plaintiffs could recover the land by reason of the breach. And further, if the buildings had been there less than twenty-one-years, yet had stood for any considerable period without objection by plaintiffs, then defendants were entitled to reasonable-notice to remove them, before an ejectment to enforce forfeiture could be successfully prosecuted.
The verdict was for defendants, and plaintiffs appeal, assign-' ing eleven errors to the charge and answers to points.
Without taking up and passing upon the assignments of error-in their order, we do not see how, in any view of the undisputed facts, plaintiffs can now enforce the forfeiture of defendants’' estate in the lot. In the equity proceedings, it was found as a fact, that many years before 1881, the forbidden structures.
Suppose, instead of filing a bill in equity in 1881, Orne had brought ejectment to enforce a forfeiture; Eridenberg would
It is argued, laches is no defense to future prevention if there be no estoppel, and further, whatever may have been the supineness of plaintiffs in the past, there is in that no waiver of recurring breaches.
What will be the legal conclusion from permissive violations of the condition in the past, if proceedings be instituted to re strain threatened violations in the future, we are not called upon to decide. The question before us is whether, under the facts, a forfeiture can be enforced for permissive breaches in the past ? As in the case of Lehigh Coal Co. v. Early, 162 Pa. 338, “ The right of re-entiy might have been enforced upon breach of the condition in the deed, if done at once or within a reasonable time; but the condition being subsequent, if the breach was acquiesced in by the grantor and valuable improvements made, a forfeiture of the estate after long delay will not be permitted.”
As the court below should have affirmed defendants’ sixth point, “ That, under all the evidence and the law in this case, the verdict must be for defendants,” no harm was done plaintiffs by submitting the evidence to the jury, and entering judgment on the verdict found by them for plaintiffs.
The judgment is affirmed.