Law v. Weeter

Opinion by

Orlady, P. J.,

These plaintiffs, without objection, joined in a bill in equity to restrain the defendant from maintaining a specified addition to his dwelling house, and after hearing on bill, answer and proofs the court directed that the construction as defined in the testimony should be removed; and that he be perpetually restrained from enclosing the defined addition to the house with panelling, glass, or in any other manner. The properties of the plaintiffs and the defendant front on a public street, and in their several titles, each is subject to a building restriction as follows: “The following easements are annexed to said described lot as easements appurtenant thereto, viz, No house shall be erected upon said lot costing less than fifteen hundred dollars ($1,500), and the front thereof shall not be nearer than fifteen feet (15) from said Melrose street.”

The proper construction to be placed on such a building restriction, very frequently depends not only upon the phraseology of the particular restriction, but it is to, be considered in connection with the nature, character, size, purpose, etc., of the project in question, with a common sense interpretation to be placed upon the words used under the particular facts of the case.

■ These three adjoining properties were so located as to form a separate block, having a twenty-foot alley on the side of the Weeter lot, and a like alley on the side of the Mitchell lot, the Law lot being between these. When the ■dwelling house was erected on the Weeter lot, it was set back twenty feet from Melrose street. Law then erected his house, and conformed to this twenty-foot building line, and Mitchell built his house to front on the fifteen (15) foot line. Each of the property owners erected,, apparently by the consent, at least without any objection from the others, open frame porches in front of their respective buildings.

Recently the defendant Weeter, extended the front of his house a distance of five (5) feet, bringing the front wall of his building up to the fifteen (15) foot restricted building line, and afterwards proceeded to erect as an addition thereto a building, which is found by the court to be as follows: “The structure consists of three brick piers eighteen inches square, extending as high as the-building, which is three stories, and on the two upper’ stories, supported by the piers, are two open balconies or porches; and on the ground floor there is an inclosure-of wood and glass, making a permanent room, connected with the main house, and, since its completion is and has been used as a part thereof. This room obstructs light, air and prospect, and mars the appearance and uniformity of the street, and deprives the plaintiffs of the light,, air and prospect theretofore enjoyed by them.”

The appellant urges that this construction, as made by him, is nothing more than a porch; that as such, it is not prohibited by the restriction in the deed, and Ogontz, Etc., Land Company v. Johnson, 168 Pa. 178, is relied on to sustain this view.

In that case, Mr. Justice Mitchell said, “Whether a porch or piazza attached to a dwelling is a building or a constituent part of the dwelling depends on the manner’ of its construction, and the uses to which it is to be applied, but we do not think the fact of its being open or enclosed is the ruling factor. It is one item of evidence only, and each case must depend on its own circumstances as shown by the whole evidence.......The fact that it is open at the sides and in front, will not save it from being an obstruction to light, air, and uniformity of effect, and as such, contrary to the restrictions.”

The question was presented in Willock v. Arensberg,. 51 Pa. Superior Ct. 73, in which we held, that it is not every purely technical violation of a covenant or duty that a court sitting in equity will enjoin; there must be some substantial injury. See also Reading City v. Yeager, 62 Pa. Superior Ct. 268.

When they erected the dwelling houses on their lots, these three neighbors, placed their own interpretation on their title and the restriction by keeping their buildings back of the fifteen (15) foot building line, and claimed no more than an open porch addition thereto. In doing this neither one, could be said to have assented to a further encroachment than was then made, or that the building line as fixed in their respective deeds was abrogated by consent of any adjoining owner. These plaintiffs are clearly within their rights in seeking to restrain this defendant from further encroachment on the easement common to the three parties. The name by which it may be called does not answer the case. Its extent, character of construction, intended uses, and general effect on neighboring properties are to be considered.

After examination of the testimony in this case, we agree with the conclusion reached by the learned trial judge in holding, that the structure in front of defendant’s building is not a porch, within the meaning placed on the covenant by the lot owners or by their subsequent conduct; it is an enclosed room, — an integral part of the house, and the front of the house is now the front of this room. Appellant’s contention would justify the closing in of the second and third story balconies or piazzas, and utilizing that additional space for general occupancy. Such a construction would be unreasonable. The first floor, as now arranged, under the name of a porch, adds to the building proper a room or apartment, ten (10) feet wide, twenty-one (21) feet long with solid brick piers for the outside supporting walls. Whether the construction between these piers be built in with brick, wood or glass, would be only a matter of taste of the owner. Under the interpretation as urged by the defendant, the front of his house would be the inside line of what he calls his porch, and the improvement of the second and third stories by a like construction would be warranted, if the first story erection is justified, and would entirely ignore the building line restriction.

The assignments of error are overruled, the decree of the court below is affirmed.