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BAEDERWOOD v. MOYER (03/24/52)

March 24, 1952

BAEDERWOOD, INC.
v.
MOYER, APPELLANT



Appeals, Nos. 14 to 18, incl., Jan. T., 1952, from decree of Court of Common Pleas of Montgomery County, Nov. T., 1947, No. 234, in case of Baederwood, Inc., v. Anna I. Moyer et al. Decree affirmed.

COUNSEL

Albert Smith Faught, with him Fleer & Miller, for appellants.

Samuel A. Goldberg, with him Charles H. Brunner, Jr., Samuel H. High, Jr. and Wolf, Block, Schorr & Solis-Cohen, for appellee.

Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 370 Pa. Page 37]

OPINION BY MR. JUSTICE BELL

Plaintiff filed a petition for a declaratory judgment under the Act of June 18, 1923, P.L. 840, 12 P.S. ยง 831.

Baederwood, Inc. proposes to erect on that portion of its ground between Baeder Road and the Reading Railway tracks, and on the ground northwest of Baeder Road, fifty-two two-story multiple family dwellings. Each apartment dwelling will contain two two-bedroom and two one-bedroom apartments -- facilities for four families. The buildings are known as garden-type apartments. Each building will have garage space in the basement for one car for each of the four families. The buildings are permitted by the zoning ordinances, and will be financed in accordance with the National Housing Act and with the rules and regulations of the Federal Housing Administration.

Baederwood, Inc. purchased in 1936 a large tract of 144 acres in Abington Township, Montgomery County, Pennsylvania, bounded by York Road, Jenkintown Road and the Reading Railroad. The land which was bought by these defendants was high, wooded and ideal for fine residential use; the land retained by plaintiff was low and swampy and parts thereof were adjacent to railroad tracks and to plants or commercial properties. At the

[ 370 Pa. Page 38]

    time of suit as well as at time of purchase, part of the tract was zoned commercial.

Prior to the filing of plaintiff's petition for a declaratory judgment, plaintiff had conveyed fifty-seven lots, and since the petition fourteen additional lots. Fifty-one lot owners opposed the petition but only four have appealed. The trial judge decided in favor of the defendants; but subsequently wrote an opinion for the court en banc in which he found that "there is no restriction requiring single family dwelling occupancy of [plaintiff's] land,... either expressed or implied"; and held that no restrictions existed to bar the erection of the proposed apartments.

The real question involved is whether the purchasers of lots containing various restrictions may under the facts in this case invoke the doctrine of reciprocal covenants so as to bar the original common owner and grantor ...


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