Boyer v. Schoch , 1924 Pa. Super. LEXIS 20 ( 1923 )

Argued December 11, 1923. The building restriction in appellants' deed provides, inter alia, that there shall not be erected on the lot of ground conveyed thereby any building or buildings for offensive use or occupation; that the building to be erected thereon shall be, none other than a private dwelling; that no building to be erected thereon shall at any time thereafter forever be altered, changed into or used for any purpose other than above designated. Defendants have for several years occupied the house erected on said lot as a dwelling and during that time LeRoy Schoch, the husband, has, without objection, conducted his business as a real estate agent and notary public there, using part of the basement along 60th Street as an office for that purpose. In the spring of 1922 certain alterations were made to the basement for the purpose of making the office more commodious and convenient. The decree of the court below requires appellants to remove these alterations and restore the basement to the condition it was in when they acquired title.

There is nothing in the alterations, per se, which is incompatible with their use as a part of the dwelling; they are not such as necessarily set the basement apart as a business place or prevent its use for dwelling purposes. If the defendants had seen fit to partition off a room in the basement from the laundry and heater, floor and ceil it, convert one window into a street door and change two other small windows into one large plate glass window, intending to use it as a basement dining room, a billiard or recreation room, or for any other purpose connected with their use of the house as a private dwelling, no one could have complained. The alterations themselves are not a breach of the building restriction. It is their use which may prove so. It is not necessary for us to decide whether the use of the basement by the appellants for three years as a real estate office, while they were occupying the rest of the building as a private dwelling, was a violation of the restriction in the deed, for after this lapse of time they will not be disturbed in such use in connection with their dwelling: Hohl v. Modell, 264 Pa. 516; Phillips v. Dunseith,269 Pa. 251. But on the other hand they must not by gradual encroachments, after the manner of the camel in the fable, change the character of the building from a residence to a business place.

The decree, in our opinion, goes too far, for it requires the removal of alterations and improvements which are not in themselves objectionable, but which may become so if used in such a way as to contravene the restriction in the deed.

It should be modified, so as not to require the defendants to restore the basement to the condition it was in before, nor prevent them from using it as they had previously, in the conduct of the real estate and notary business in connection with their occupation of the rest of the house as a dwelling, but so as to restrain them from devoting it to any other or additional business use or using it as a place of business apart from their occupancy of the dwelling: Hohl v. Modell, supra; Phillips v. Dunseith, supra; Landell v. Hamilton, 177 Pa. 23.

The decree is modified accordingly and it is ordered, adjudged and decreed that the defendants, LeRoy Schoch and Elizabeth M. Schoch, be enjoined and restrained from making any further changes or alterations to the premises No. 6001 Oxford Street, Philadelphia, designed to convert said premises from a private dwelling into a business place; and also from making use of said premises other than as a private dwelling house and a real estate and notary office in connection with their dwelling; and from using the said premises to any greater extent as a business place, or for any other purpose, than as now used and occupied. The costs in the case to be equally divided between the parties.