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BENNETT v. LANE HOMES (03/27/52)

March 27, 1952

BENNETT
v.
LANE HOMES, INC., APPELLANT



Appeal, No. 87, Jan. T., 1952, from decree of Court of Common Pleas No. 4 of Philadelphia County, June T., 1951, No. 1086, in case of Robert Bennett et ux. v. Lane Homes, Inc. Decree affirmed.

COUNSEL

William Ginsburg, with him Ginsburg & Weisberg, for appellant.

Norman R. Bradley, with him Benjamin Fertick, for appellees.

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

Author: Musmanno

[ 369 Pa. Page 510]

OPINION BY MR. JUSTICE MUSMANNO

The defendant in this case, Lane Homes, Inc., owns a plot of ground on which it proposes to build a three story 34-unit apartment house, whose overall dimensions would be 151 feet by 160 feet. The land upon which the apartment house would be built is part of a tract of land located in Philadelphia and originally owned by one Frank Mauran who in 1924 divided it into building lots each with a street frontage of 24 feet, imposing upon the tract the restriction that " not more than 1 house, same to be detached or semi-detached and private garage to be used in connection therewith, shall be erected on each lot with a frontage of at least 24 inch..."

The plaintiffs, who are owners of private dwellings, all erected on land subject to the same restriction, brought a bill in equity to enjoin the erection of the proposed apartment house as being in violation of the

[ 369 Pa. Page 511]

    admitted restrictive covenant. The defendant filed exceptions to the permanent injunction granted by the court below, the exceptions were dismissed and this appeal followed.

Reduced to its simplest terms, the only question before us is: Is an apartment house a house, in the sense intended by Frank Mauran in his deeds conveying the land which is the subject of controversy?

Counsel for the appellant Lane Homes, Inc., has filed a brief, persuasive in tone and studded with quotations from decisions which at first blush seem convincing. He argues that the words "private garage" used in the deed may not modify the preceding word "house," so as to limit construction to only private dwellings. Once an unlimited right is granted, subsequent limitations will not avail to reduce the scope of the unlimited right. And he quotes from Peirce v. Kelner, 304 Pa. 509, 515, 156 A. 61: "A careful review of the authorities, in this as well as other jurisdictions, relating to the use of the words 'dwelling house' leads us to conclude that a restriction of this nature does not exclude the erection of an apartment house but embraces this type of dwelling within its modern signification... The authorities are numerous that a covenant to erect only one building does not forbid the erection of an apartment house."

It was held also in that case that the words "private stable" did not limit the word "building" to a dwelling house: "Nor does the limitation 'private stable' aid the restriction so as to limit the building to a dwelling house because ...


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