175 Pa. 327 | Pa. | 1896
Opinion by
In the year 1831, William Hause, being the owner of a lot of ground on the South side of Chestnut street, between Twelfth and Thirteenth streets, fronting on Chestnut seventy-four feet and extending back to Sansom street two hundred and thirty-five feet, divided it into three lots, giving the middle and western lot, each, a frontage on Chestnut street of twenty-five feet, and the eastern one twenty-four feet on the same street, all extending back at right angles to Sansom street. On each of the two outer lots, he built a three and a half story brick house, covering the entire front; these main buildings extending back fifty-one feet eleven inches; then, back buildings for dining room and kitchen, only two stories high, but extending sixty-six feet further back; these back buildings, however, were five feet six inches narrower than the main building, leaving that width between the walls and the lines of the middle lot. He also built a house on the middle lot, the main building being the same as the other two, but with no back building, the kitchen being in the basement, the windows looking south towards Sansom street.
On March 24, 1832, Hause conveyed both the eastern and western lots to Lindsay Nicholson and Rebecca H. Willing, for the consideration of $19,000 for each lot. In the deeds was tills condition:
“ Under the condition, nevertheless, that no building or part of a building, other than steps and railings, cellar doors, door
The numbers of these two lots are 1206 and 1210. The title to 1206 by regular conveyances, all duly recorded, and embodying the condition, became vested in plaintiff, and in 1888 that of 1210 became vested in George Allen for the consideration of $125,000.
On November 10, 1832, Hause, for the consideration of $16,000, conveyed the middle lot, 1208, to one Stewart, under whom defendants claim. In that deed, after mentioning that the lot is bounded east by 1206 and west by 1210, is inserted the following condition :
“ Under the condition, nevertheless, that no building, other than steps and railings, cellar doors and door frames, window shutters, eaves and cornices, shall hereafter be built or erected on the said hereby granted lot of ground within five feet of the South line of the said Chestnut Street; and subject to the condition that the house on the lot of ground hereby granted is and shall be forever restricted from having any building or part of a building attached to the said messuage now erected thereon of greater height than ten feet from the surface of the yard.”
In the warranty clause, it is declared it is, “ Under the condition and subject as aforesaid.”
There seems to be no doubt that, in the intervening sixty-three years between 1832, the date of the first conveyance, and 1895, when defendants took their title, the owners and occupants of the middle lot had, in some particulars, failed to keep within the strict terms of their conveyance. Structures had been put upon the Sansom street end of the lot, higher than the limit prescribed in the deed; and some of the buildings on the lot in
The defendants, the last purchasers of the middle lot, are about to take down the old house erected in 1832, with the view of putting upon it a building one hundred feet high, extending from Chestnut to Sansom, formerly George street. The plaintiffs file this bill to restrain them, alleging that such a structure will be a palpable violation of their right under the covenants in the prior deeds of their common grantor.
The defendants admitted the facts as we have stated them, but denied that the building they intended to put up was an illegal violation of the restriction. Further, they averred, the character of the locality had wholly changed since 1832, when the restriction was first imposed; at that time, that part of Chestnut street was taken up by residences ; now it is devoted to business.
The court below refused to enjoin defendants, and plaintiffs appeal.
We are of opinion, the issue turns wholly on the interpretation of the covenant in the deed of March 24,1832, from Hause to Nicholson for lot 1206. The grantor covenants for himself, his heirs and assigns, with the grantee, his heirs and assigns, “that the house on the lot of ground adjoining to the West of the hereby granted lot, now belonging to the said William Hause, shall be forever hereafter restricted, from having any building or part of a building attached to the said messuage, thereon erected, of a greater height than ten feet from the surface of the yard.” Then the subsequent conveyance of the middle lot imposes on that grantee and his assigns subserviency to the restriction in favor of the grantees of the east and west lots.
Does the covenant run with the land ? If so, the power of the owner of the land, out of which he carved three lots, to burden the middle one with such a continuing covenant, cannot be questioned. It has been decided, as will be noticed from the cases hereinafter cited, that in equity the test by which to deter
It is argued, in substance, that a covenant running with the land, so manifestly prejudicial to the enjoyment of the middle lot, could not have been intended by the grantor; that the reasonable construction is, the obligation under it terminates with the removal of the house then upon the middle lot.
That this covenant, if a perpetual burden, now most vexatiously restricts the owner of 1208 in the enjoyment of the property, and very greatly depreciates its value, may be conceded; and if such result had appeared imminent at the date of the conveyance, this argument would, perhaps, not have been without weight. It will be noticed that, notwithstanding the restriction, the consideration for the middle lot in 1882 was $16,000, and for each of the others $19,000; the owner seems to have received, in enhanced value of the two outside lots, by reason of the additional back buildings and the benefits accruing to them from the restriction in their favor on the middle one, $6,000. He, doubtless, at that day, assumed this sum represented the value of the relative advantages and disadvantages to the lots created by the restriction. But he did not foresee the comparatively near future anymore than we see ours. In our bargains, to the extent we judge probable, we provide for and guard against proximate future contingencies; as to the very remote, or what appears to us the very remote, we are indifferent. The serious effect of the restriction, now, after the comparatively short period of sixty years, as affecting the enjoyment of the middle lot, even if his intention had been to hold it for himself and heirs, was not thought probable by him or any other lot owner of that period. The present values of real estate in the present Philadelphia may have been thought possible in a couple of centuries, but not sooner. They knew the growth of the city in the preceding century and a half of its existence, and that it had then reached a population of less than two hundred thousand, but they had no reason • to believe that, in the next half century, the population would reach more than a million, and that new methods of communication and travel would then have placed other millions practically as close to them as was Lan
And this intention is only the more clear when we consider the subject of the contract. He had built the three houses with a view to such a restriction; by the character of the structures, he intended the middle lot should be servient to the other two; for the depth of the main buildings they should be equal, but, from these back, the east and west lots should be dominant. The middle shall have no building higher than ten feet erected upon it; for this one he provides a basement kitchen, so that the lot is unobstructed for all three main buildings to the rear. What was the purpose in having the lot thus unobstructed? Manifestly that, as thus arranged by him, all three should enjoy light and air. He then conveys the two outer lots with an expressed intention conforming to the structures ; these last measured the extent to which the dominant lots
The purpose to afford air and light to the dominant lots could only be accomplished by an unlimited, as to time, restriction ; and there is nothing to indicate that a change in the nature of the occupancy should affect the expressed right under the covenant. It is probable that deprivation of air is less endurable to the occupants of a dwelling, than to those of a store or factory; and generally the latter are less disposed to resist such deprivation; but these elements promote the health and comfort of one class of occupants as fully as the other, and both have the same right to insist on a restriction for their protection. No such change in the use of the land as appears here has ever been held destructive of the original covenant in any of the adjudicated cases in this state; nor, in our opinion, can such judgment be sustained on sound legal principles.
Taking the surroundings of the parties at the date of the conveyance; the subject of the contract; the purpose of it, and the words of it, we are of the opinion, it was intended to place a restriction upon the middle lot, running with the land, for the benefit of the eastern lot, which should forever prevent the obstruction of light and air by buildings higher than ten feet to the rear of the main building.
As long as such restrictions are not unlawful, it is to no pur
We concede, some of the cases decided in other states are in apparent conflict with our decision. But what this court has uniformly held, and now holds, is, that where the restriction, notwithstanding the change of use of the land and buildings, still is of substantial value to the dominant lot, equity will restrain its violation, if relief, as here, is promptly sought. There may be and doubtless will occur cases where the restriction has ceased to be of any advantage. In such cases, equity would not interpose and retard improvements, simply to sustain the literal observance of a condition or covenant. And three of the eases relied on by appellees are of this very character, and therefore clearly distinguishable from the one before us: In Columbia College v. Thacher, 87 N. Y. R. 311, the agreement was between owners of dwelling houses, that one of them would not erect, carry on or establish any stable, schoolhouse, engine house, community house, or any kind of a manufactory, trade or business whatsoever on the land. His grantees opened up and carried on many lands of-business in violation of the original covenant. The purpose of the covenant was, manifestly, to secure privacy and freedom from noise in the dwelling houses, but, by the construction of an elevated railroad, its desirability f or dwellings had been practically destroyed; privacy and quiet could no longer be enjoyed; the court refused to enjoin the use of the land for business and manufacturing purposes, because, by the change consequent upon the construction and operation of the railroad, the purpose of the restriction had been defeated. Equity would not lend its aid to the enforce-
In Page v. Murray, 46 N. J. Eq. Rep. 325, the restriction was to protect the land from cheap tenement buildings, and encourage its occupation by a superior class of residents. To this end, it provided that, for a period of twenty years, no building should be erected costing less than $3,000, and no hotel, tavern, lager beer saloon, livery stable, etc., should be erected thereon. In the meantime, buildings of a low class had been erected in all the surrounding neighborhood. The purpose to make the land desirable for another class of occupants was thereby defeated, and this, together with the fact that the twenty years term had nearly expired, induced the court to refuse an injunction to restrain violation of the condition. The court would not enjoin that which could not damage the plaintiff.
In Jewell v. Lee, 96 Mass. 145, there was a condition in the grant, that the land bordering on the ocean should be used for no other purpose than access to the water for bathing and boating, and low bath houses. It was held, from the facts in that case, that the intention of the grantor was to create a restriction in favor of adjoining land which he continued to hold; that, as this land had passed to other grantees in separate lots, they could not insist on a restriction personal to the original grantor, and the court says : “ "Where it is apparent, the condition was annexed to a grant for the purpose of improving or rendering more beneficial and advantageous the occupation of the estate granted, when it should become divided into separate parcels, and be owned by different individuals, or when the manifest object of the restriction on the use of an estate was to benefit another tract adjoining to or in the vicinity of the land on which the restriction is imposed,” equitable relief will be afforded.
Not one of these cases is in conflict with our decision here; on the contrary, they support it. While cases are cited which support the contention of appellee, the weight of authority is the other way, and we see nothing to induce us to depart from the settled rulings on this question, as announced in our own cases already cited.
The decree of the court below refusing an injunction is reversed, and injunction is awarded as prayed for in plaintiff’s bill. It is further ordered that appellees pay the costs.