Meigs v. Milligan

Opinion by

Mr. Chief Justice Sterrett,

After this cause was regularly at issue, it was agreed by the parties that certain facts, recited in their statement filed, shall “ have the same force and effect as if duly proved and found according to equity practice,” and that said facts shall, “ be a substitute for all allegations of fact in the bill and answer,” and further that said last mentioned allegations of fact “shall not be evidence for any purpose.” The ease was accordingly heard and disposed of on the substituted facts recited in said statement ; and the sole question is whether upon those admitted facts the learned court erred in entering the decree from which the defendant has appealed.

Without referring in detail to all the recitals contained in the statement, it appears in the first and second paragraphs thereof that plaintiffs are the owners in fee of premises No. 1208 Walnut street, and the defendant, William Milligan, is the owner— by deed of July 10, 1894 — of the adjoining house and lot, No. 1210 Walnut street, immediately west of plaintiffs' house and lot.

The facts, recited in the third and in the first sentence of the fourth paragraph, show that by regular deeds of conveyance the title in fee to premises Nos. 1208 and 1210 Walnut street became vested in Charles D. Meigs prior to July 1, 1854. On that day, as recited in the residue of the fourth paragraph, “ Charles D. Meigs, being then the owner of Nos. 1208 and 1210 Walnut street, conveyed No. 1210 Walnut street to John Forsyth Meigs in fee by deed, duly recorded, which recited the condition set forth in paragraph 3, and contained the following covenant: ‘And the said John Forsyth Meigs doth for himself, his heirs and assigns, covenant, promise, and agree to and with the said Charles D. Meigs, his heirs and assigns, owners of the messuage and lot of ground adjoining the above described and granted lot on the east, that he the said John Forsyth Meigs his heirs and assigns, shall not and will not, at any time or times hereafter, erect or put up or cause or suffer to be erected or put up any building or part of a building or other obstruction except a bath house and privy and walls or fences not exceeding eight feet in height from the level of the ground, on the said above described and granted lot of ground further south than fifty-nine feet from the original line of the said Walnut street.’ ”

“ On August 5th, 1865, Charles D. Meigs conveyed No. 1208 Walnut street to John Forsyth Meigs, by deed duly recorded, under and through which plaintiffs own that lot. And on same day, John Forsyth Meigs conveyed No. 1210 Walnut street to Charles D. Meigs by deed duly recorded, under and through which the defendant owns that lot. This deed and all the subsequent conveyances, under which the defendant derives title, recite at length the conditions in the deed of 1828, (quoted in paragraph 8), and also the covenant of John Forsyth Meigs, (above quoted), and all contain a recital, immediately after the clause of habendum et tenendum, that they are made ‘ under and subject to the above mentioned conditions ’ as the same are above particularly mentioned.”

It is further agreed, inter alia, in paragraphs 6 and 8, that in August, 1894, the defendant commenced to construct a bath house, jutting out from the rear wall of his house at or near the level of the second story and extending up over his own lot more than nine feet above said level. This structure, — nearly nine feet deep, six feet wide and over nine feet high, — is more than eight feet above the level of the ground and more than fifty-nine feet from the original south fine of Walnut street. Immediately upon discovering defendant’s intention to construct this bath house, plaintiffs warned him to desist, and thereupon filed their bill praying for an injunction, etc.

On behalf of defendant, it was contended in the court below and here that the structure in question, which was completed and fitted up for a bath room or house, is not within the inhibition of the building restriction above quoted, because “ a bath house ” is one of the structures excepted from its operation, and the qualifying words “ not exceeding eight feet in height,” etc., apply only to inclosing “ walls or fences,” and not to either of the other structures — “ bath house and privy ” — specified in the same exception. The learned judge of the common pleas came to a different conclusion, and holding that the structure in question was prohibited by the building restriction he accordingly entered the decree from which this appeal was taken. In thus construing tbe covenant running with the land we think he was clearly right. Our consideration of the facts presented in the statement above referred to has satisfied us that the purpose of the parties was to create an easement of light and air in favor of plaintiffs’ lot by imposing the same on the lot now owned by the defendant, and to that end the covenant above quoted was incorporated in the deed. Tins is substantially the construction put upon the restriction clause by the learned judge, and his decree should not be disturbed.

Decree affirmed and appeal dismissed at appellant’s costs.