Orne v. Fridenberg , 143 Pa. 487 ( 1891 )

Opinion,

Mr. Chief Justice Paxson:

This was a bill filed in the court below to restrain the defendants, who are the appellants here, from continuing to maintain certain erections on the premises 908 Chestnut street, Philadelphia, upon the ground that they were erected in violation of certain building restrictions imposed upon said property by Edward Shippen Burd, when he sold and conveyed it to Thomas C. Rockhill in 1825. The title to the adjoining or Burd property has been vested by numerous mesne conveyances in the plaintiff, and the Rockhill property is now owned by the appellants as testamentary trustees.

The three principal matters complained of in the bill are: (a) A stable and coach-house on Sansom street; (b) a bulk window on Chestnut street; and (c) two frame buildings between the Chestnut-street front building, and the back buildings on Sansom street. The court sustained the bill, and awarded the injunction prayed for. As to the stable, the injunction merely prohibited its use “ for any purpose whatever, except that of a stable and coach-house.” It could not have been any broader, for the reservation expressly permitted its erection, nor did the reservation limit its use or occupancy further than may be implied from the designation of the building as a “ stable and coach-house.” As to the other buildings, the injunction was mandatory, and the decree is broad enough to require their destruction.

The answer avers that the erections complained of are the same that existed on the premises when the defendants’ testator first viewed and bought the premises in 1875, and had then existed for more than twenty-one years previously. There is no finding by the master which essentially contradicts the answer in this respect. Exact dates are not very material, in our view of the case, as it is undisputed that all the structures were there many years before this bill was filed.

The plaintiff had a choice of remedies. He might have brought his action at law, or he might, as he did, file his bill. By adopting the latter remedy he submitted his case to the conscience of a chancellor, who will or will not enforce a mere legal right, as the equities of the case demand. A chancellor does not, and ought not to interfere by way of mandatory injunction, even though the injury be clearly established, where there has been long-continued delay in asserting the right, and a remedy exists at law. The plaintiff had only to look out of his side windows to see the erections in the yard, and the bulk window on Chestnut street was plainly before him every day as he entered and left his own store. It must not be forgotten that the defendants did not put up the offending building; nor did their testator. He found them there when he purchased the property, and may well have supposed that the restrictions were no longer in force. Be that as it may, the fact remains that the plaintiff was guilty of very gross laches in enforcing his rights. If there is anything well settled in equity, it is that a chancellor will not extend the aid of an injunction where the party has slept for a long time upon his rights, j Authorities might be cited without number, were it necessary. I shall refer to a few only.

I find the law upon this subject nowhere better expressed than in 2 High on Inj., 1159. It covers the present ease so fully that I give the extract at some length:

“ In considering applications for relief by injunction against the breach of restrictive covenants contained in conveyances of real property, the courts require due diligence upon the part of the plaintiff seeking the relief, and laches or acquiesence 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 acquiesence is sufficient to defeat the application, since every relaxation which plaintiff permits in allowing erections to be made in violation of the covenant amounts pro tanto to a disaffirmance of the obligation. Where, therefore, plaintiff lies by for a period of four or five months, permitting defendants to go on with their erections in disregard of the covenant, he will be denied relief by injunction; and where a vendor of real property takes from each of several purchasers a covenant that he will leave unbuilt a certain portion of the premises conveyed, he will not be permitted to enjoin a breach of this covenant by one of the purchasers, when he has permitted prior purchasers to violate it without taking proceedings against them, And, generally, whenever plaintiff stands idly by, and permits the erection complained of to be made, and expenses to be incurred therein, without objecting, his application for the aid of a court of equity comes too late, and will not be entertained. Thus, where purchasers of real estate have bought upon condition that they are to use the land for a specific purpose, and none other, they will not be restrained from using it for other purposes when "plaintiff has permitted them to go on without objection, and to incur large expenses in the work proposed, no sufficient excuse being shown for the delay in invoking the aid of equity.”

This is the recognized rule in England and this country. See German R. C. Asylum’s App., 115 Pa. 165; Mitchell v. Steward, L. R. 1 Eq. 541; Roper v. Williams, 12 Eng. Ch. 23; Water Lot Co. v. Bucks, 5 Ga. 315. In Clark v. Martin, 49 Pa. 289, where a mandatory injunction was awarded to abate a building erected in violation of a restriction, the application was promptly made before its erection. Indeed, I doubt if a case can be found in the books where an injunction has been awarded after the delay that has been shown here.

This practically disposes of the case. Were it necessary to go further, a strong argument might be made against awarding the injunction by reason of the changed circumstances. When Mr. Burd conveyed this property to Mr. Rockhill, in 1825, he lived in the old mansion at the southwest corner of Ninth and Chestnut streets. The lot was over one hundred feet in front, and extended back, with a stable on the Sansom-street front. The house had wings on each' side, receding somewhat from the front line of the main building. It was natural that he should restrict the building on Chestnut street, to the line of his wings, and the erection of high buildings in the rear, yet he permitted the erection of a stable and coach-house on the rear of the lot similar to his own. After Mr. Burd’s death, the whole scene was changed. The old Burd mansion was demolished, and a row of stores now occupy its site. There is nothing to show that the erections on 908 interfere in any sensible degree with plaintiff’s enjoyment of light and air. The stable has not been used for many years as such ; it is now used as an office by the Edison Light Company. The location is no longer a residential neighborhood, and a stable there would be far more objectionable than its present use, even if it could now be rented for that purpose. This entire change of circumstances and surroundings might well make a chancellor hesitate ere he applied the strong arm of an injunction. There is a line of well-decided eases which hold that such changes in the neighborhood, the character of the improvements, and the purposes to which they are applied, are sufficient to justify a chancellor in refusing an injunction to restrain violations of building restrictions. It is sufficient to refer to Page v. Murray, 46 N. J. Eq. 325; Columbia College v. Thacher, 87 N. Y. 319; Peck v. Matthews, L. R. 3 Eq. 517; Sayers v. Collyer, 24 Ch. Div. 180; Duncan v. Railway Co., 85 Ky. 525.

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.

The decree is reversed, and the bill dismissed at the costs of the appellee.

On October 29, 1891, a motion for a re-argument was refused.