Muzzarelli v. Hulshizer , 163 Pa. 643 ( 1894 )

Opinion by

Mb. Chief Justice Stebbett,

This appeal is from the refusal to grant a preliminary in.~ junction restraining defendants from violating the building restriction contained in the deed, hereinafter referred to, under which they derive title.

So far as they are material to the question involved in this ■contention, the facts are sufficiently stated in the bill. In 1830, Mrs. Elizabeth B. Sergeant owned three adjoining lots, ■each fronting twenty feet and four inches on the west side of North Ninth street, Philadelphia, and extending bach, preserving same width, about one hundred and sixteen feet, now numbered respectively 252, 254 and 256, on which it is alleged that three houses were then about being erected. On December 21 of that year, by three separate deeds, of same date, Mrs. 'Sergeant conveyed said lots to different persons reserving a ground.rent. Each deed was therefore signed and sealed by ■the purchaser. In each, the description of the lot conveyed referred to the adjoining lot or lots as “intended to.be this day ■granted, by the said Elizabeth B. Sergeant, to ” the purchaser of such adjoining lot. The middle or central lot, now owned by the defendants and numbered 254, was thus conveyed to William G. Hough, who signed and sealed the deed therefor. That deed contains, at the end thereof but above his signature ■and seal, the following clause: “ It is further understood, ■conditioned and agreed by and between the said parties hereto that the said William G. Hough, his heirs and assigns, shall not nor will at any time hereafter erect or build on the said hereby granted lot any building or part of a building further westward than thirty-seven feet from the line of Ninth street, ■except.a privy and bath-house not exceeding six feet in depth and sixteen feet in height, from the lower floor of the house, now erecting on the said lot, to the eave of said, bath-house.”

By deed of same date, as above stated, lot No. 252, now belonging to plaintiff, was conveyed by same grantor. In that deed no reference, in express terms, is made to said building restriction, but the lot conveyed is described, in part, as bounded, “ Northward partly by a lot of ground intended to be this day granted by the said Elizabeth B. Sergeant to William G. Hough on ground rent.” In like manner, her deed to Mr. Hough describes the lot conveyed to him as bounded on the south by property intended to be granted to David R. Knight, through whom plaintiff derives her title. By similar deed of same date, lot No. 256 was eonvejmd to John C. Davis. These three deeds, all of same date, were duly recorded, etc.

It is conceded by defendants that they have commenced and intend to erect an addition to their front building which will extend further westward than thirty-seven feet from the line of Ninth street; but they deny that their lot is subject to any building restriction in favor of plaintiff’s lot.

On the other hand, it is claimed by plaintiff that the building restriction above quoted is in the nature of a covenant running with the land, and was intended to create and did create an easement of light and air in favor of her lot as well as the lot adjoining that of the defendants on the north, the observance of which, as to her own lot, she has a right to enforce. Considered in the light of the undisputed facts and giving to the words employed their ordinary and proper meaning, we are- unable to see that the clause in question is susceptible of any other reasonable construction. It cannot be successfully contended that the restriction was intended to be merely personal or .temporary, such as during the lifetime or the ownership of Mr. Hough, the grantee of Mrs. Sergeant. No warrant for any such construction can be found in the language employed. The words of. the covenant are that “the said William G. Hough, his heirs and assigns, shall not nor will, at any time hereafter, erect,” etc. In principle the case does not essentially differ from Clark v. Martin, 49 Pa. 289, and St. Andrew’s Church’s Ap., 67 Pa. 512, and is ruled thereby.

On the case, as presented, we think the learned court erred in denying the motion for a preliminary injunction.

Decree reversed with costs to be paid by defendants, and it is ordered that upon plaintiff giving bond in such sum as may be fixed by the court below; a preliminary injunction, as prayed for, be issued.