Appeal, No. 25, Jan. T., 1952, from decree of Court of Common Pleas of Delaware County, June T., 1949, in Equity, No. 313, in case of Robert C. R. Tucker et ux. v. Clifford V. Howe, et ux. and Sclufer Construction Company. Decree affirmed.
Samuel A. Goldberg, with him Lindenmuth & Class, Oscar Brown and Wolf, Block, Schorr & Solis-Cohen, for appellants.
Martin F. Hatch, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
Plaintiffs, Robert C. R. Tucker and Eleanor L. Tucker, his wife, filed a bill in equity for an injunction
to restrain defendants, the Sclufer Construction Company and Clifford V. and Myrtle J. Howe, husband and wife, from constructing a house on land owned by the Howes in violation of certain deed restrictions. Answers to the bill were filed by the defendants, and, after a hearing, a decree nisi was entered granting the prayer of the bill. Defendants' exceptions to this ruling were dismissed by the court below and a final decree entered permanently enjoining the construction of a dwelling on the Howe's land. From this decree defendants have appealed.
The relevant and material facts in this controversy are not in dispute. The properties of plaintiffs and the individual defendants are part of a tract of land in Drexel Hill, Delaware County, once known as "Statzell's Tract". On March 30, 1912, the owners, George W. Statzell and his wife, recorded a plan of lots on which they subdivided the land into 120 lots. These properties were bounded on the north by Garrett Road and on the south by Marshall Road and intersected by three Avenues, Maple, Shadeland and Riverview, which ran at right angles to the roads and afforded a frontage to each of the lots. Twenty-six of these lots, including the lot now owned by plaintiffs and the lot owned by Evelyn Sclufer and the individual defendants, were conveyed by deed from the Statzells to Harry W. Koch on December 15, 1918. Lot 44, at 302 Shadeland Avenue, was sold to plaintiffs and they subsequently erected a home on it. Lot 42, at the corner of Shadeland Avenue and Marshall Road and adjoining plaintiffs' property, was sold on September 9, 1948, to Evelyn Sclufer who, during the year 1949 constructed a one-story bungalow on the west or rear part of the lot. The remainder of the lot, which extended along Shadeland Avenue 78 feet 9 5/8 inches, and along Marshall Road 100 feet, Evelyn Sclufer conveyed to the individual
defendants on June 16, 1949. Shortly thereafter defendants began the construction of a house on that property. Plaintiffs then brought the present bill, averring that a restriction in the deed of 1918 prohibited the construction of more than one house on lot 42; and that, since Evelyn Sclufer's house already occupied the lot, the individual defendants should be forever enjoined from building a home on their portion of the lot. The lower court upheld the contentions of plaintiffs and entered the decree from which defendants now appeal, enjoining all construction work by defendants.
The restriction clause in the deed conveying the 26 lots provided, inter alia, as follows: "Under and subject nevertheless to certain express conditions and restrictions as follows; 'that not more than one dwelling house shall at any time be erected upon the land hereby conveyed for each sixty feet of frontage thereof on any of the said Avenues'; that all buildings shal be set back at least forty feet from the street line of Riverview and Shadeland Avenues and the East side of Maple Avenue and at least thirty-five feet from West side of Shadeland Avenue that each separate dwelling shall be set back at least ten feet from the dividing line between this and the adjoining properties that all stables, garages or other out buildings shall be set back at least one hundred twenty feet from the said street line that no building (other than a stable garage or other appropriate out buildings) shall ever be erected on said premises or any part thereof to cost less ...