Bagiano v. Harrow

This case involves the italicized clause of the following building restriction:

"Said premises shall not be occupied by a colored person (of Ethiopian descent) nor for the purpose of doing a liquor business thereon and all buildings shall beplaced at least fifteen (15) feet back of the front line oflots."

The structure complained of is used as a lumber yard. The main building is properly set back. The part in controversy is an inclosure attached to the main building, of the same width and extending to the street line, without a roof, with a 10-foot tight board fence in front and 6-foot fences on the sides, used for storage of shingles, the piles sometimes having boards laid on them to form a temporary roof as protection from snow.

With commendable diligence counsel have assembled the authorities on whether fences and walls are buildings. Plaintiff is supported by Wright v. Evans, 2 (N.Y.) Abb. Prac. (N.S.), 308; MacGregor v. Linney, 27 Ohio Cir. Ct. Rep. 490, and Wimer v. Yellin, 286 Pa. 33 (132 A. 809), while defendants are sustained by Nowell v. Boston Academy of NotreDame, 130 Mass. 209, and Clark v. Lee, 185 Mass. 223 (70 N.E. 47). Each presents cases involving other structures, sufficiently analogous to support his contentions in principle.

While some of these courts have defined the word "building," none has declared its definition absolute, and all of them recognize that application of the word to a particular structure is largely governed by the terms of the instrument and the purpose of the restriction.

The purpose of the restriction at bar was not to control the kind of buildings, but to govern their location in order to afford adjoining owners light, air, and view. The fences were attached to the building, the inclosure used as an integral part of it, and the structure defeated the restriction as effectively as though the inclosure had been fully roofed. It constituted a violation of the covenant. The situation is very similar to that in Wimer v. Yellin, supra, in which the court said:

"Restrictions that are limited should be construed strictly and against the party who seeks to enforce them:Crofton v. St. Clement's Church, 208 Pa. 209 (57 A. 570);Binswanger v. Hyman, supra (271 Pa. 296, 114 A. 628). Nevertheless, they must receive the construction which their plain and obvious language implies; if the wall attached to the house, is nothing but a room without a roof, it is in an ordinary sense a part of the building or an integral and substantial part of defendant's house, and so much of it as lies within the prohibited area violates the restriction."

On at least two other occasions this restriction has been before the circuit court and has been sustained as against the claim, again here made by defendants, that it had become ineffective because of violation by others. The evidence supported the finding of the chancellor that it had remained and now is in force.

In one of the former suits plaintiff here was defendant. He made the claim of abrogation of the restriction by violation. The court held against him. He had the right to accept the adverse judgment of the court and his claims in that suit would not estop him from complaining of future violations.

The other contentions of defendants are not sustained by the evidence.

The decree is affirmed, with costs.

NORTH, C.J., and FELLOWS, WIEST, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred.