17 Pa. Super. 235 | Pa. Super. Ct. | 1901
Opinion by
The learned judge of the court below found the following facts, all of which were substantially admitted by the defendant in his answer. The defendant is the owner of a lot of ground on the south side of Latimer street, in the city of Philadelphia, 149 feet and six inches west of 16th street, being twenty-five feet in front on Latimer street and extending of that width southerly seventy-five feet deep. The lot of the plaintiff adjoins the defendant’s property and extends out easterly to 16th street. The title to both properties was formerly in Ferdinand J. Dreer, who on December 11, 1848, conveyed the lot of the defendant, with other property, to John MeCrea, his heirs and assigns, by deed which created a building restriction in these words: “ Provided always that no building or buildings to be erected by the said John MeCrea, his heirs or assigns, on the easternmost 30 feet of the two last above described and granted lots of ground fronting on Latimer street, shall at any time hereafter, extend further in depth southward from the south side of Latimer street, aforesaid, than 40 feet nor shall any window or windows or other opening or openings be made in any building or buildings to be erected on the said lot of ground containing 30 feet in front on said Latimer street by 40 feet in depth, so as to overlook the adjoining lot belonging to the said Ferdinand J. Dreer, his heirs or assigns, to the eastward thereof at any time hereafter forever.” The lot of the defendant is within the lines
The intention of the parties to the deed is by the language which they employed left free from doubt. The laud upon which the restriction was imposed was the easternmost thirty feet fronting on Latimer street. The restriction was that no building upon that ground should extend farther south than forty feet from the south side of Latimer street; that the right to build should extend only to “ said lot of ground containing 30 feet fronting on Latimer street by 40 feet in depth,” and no building erected upon that part of the lot, should have a window or other opening, “ so as to overlook the adjoining lot belonging to said Ferdinand J. Dreer, his heirs or assigns, to the eastward, thereof, at any time hereafter forever.” There can be no doubt that this was a covenant running with the land and that the restriction was appurtenant to the land of Dreer, now owned by the plaintiff: Muzzarelli v. Hulshizer, 163 Pa. 643; Landell v. Hamilton, 175 Pa. 327; Meigs v. Milligan, 177 Pa. 66. The restriction was not imposed by Dreer solely
There was in this case no allegation nor attempt to prove that there had been any change in the surroundings or use of the plaintiff’s lot that would in any way lessen the importance of the appurtenant restriction. The learned judge of the court below has found that, prior to January, 1899, there had been no material violation of the restriction. A staircase leading down from the building on the front of the lot had at one time extended out onto the restricted space, but that had been removed in 1894. Such a slight and temporary intrusion could not involve a total destruction of the reservation, and even if the structure had been permanent, it would not establish' the right to an extension of such use to other portions of the ground subject to the restriction. In January, 1899, the defendant owned the lot subject- to the restriction, and there was nothing upon his lot of which the owners of the dominant tenement had any right to complain. Such were the rights of the parties and the condition of the property when, in said month, the defendant undertook to erect a building, to be used as a carriage house, upon the forbidden ground. He erected four upright posts, each three by four inches in size, and about as high as the fence between the lots. He was at once notified by plaintiff that the restriction held by her included any building of any description upon the land, and was requested to remove the posts. The defendant at once abstained from prosecuting his building operation and did nothing until November 27, 1899, when he resumed the erection of the shed, and, although on that very day again notified by plaintiff to desist, rushed the work and completed the structure in two days.
Defendant now asserts that because he thus quickly succeeded in erecting his building in defiance of the prompt protests of the plaintiff, before the plaintiff had filed a bill to restrain him, the plaintiff must be held to have been guilty of laches and not entitled to equitable relief. The statement of such a contention is its own answer. In order to justify a holding that the plaintiff has lost, through laches, a right founded in express contract, it must appear that she has been guilty of some omission which would warrant the presumption that she had aban
The decree is affirmed.
