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MARINER v. ROHANNA (11/18/52)

November 18, 1952

MARINER
v.
ROHANNA, APPELLANT



Appeal, No. 178, March T., 1952, from decree of Court of Common Pleas of Greene County, in Equity, No. 436, in case of Jesse E. Mariner, Glise Mariner, C. Wayne Patterson, Sara Jane Cummins, J. Frank Wood and George T. Shriver v. Andrew K. Rohanna. Decree affirmed.

COUNSEL

R. W. Maxwell, with him J. B. F. Rinehart, for appellant.

Glenn R. Toothman, Jr., for appellees.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 371 Pa. Page 616]

OPINION BY MR. JUSTICE MUSMANNO

On February 14, 1945, Andrew K. Rohanna purchased from George T. Shriver, one of the plaintiffs in this case, a certain tract of land in Franklin Township, Greene County, Pennsylvania, subject to the following condition or restriction in the Deed: "The grantee, by the acceptance of this deed, doth moreover, for himself, his heirs and assigns, covenant and agree to and with the said parties of the first part that he

[ 371 Pa. Page 617]

    will not, at any time hereafter, set up, establish, conduct or carry on upon the premises hereby granted, or any part thereof, any noxious or offensive trade, business or employment, such as the use of same as a place for the storing or handling of second hand automobiles, waste paper or other junk, to the hurt, damage or annoyance of other adjoining property owners, who, by these presents, may have the right to enjoin or restrain the same."

The defendant apparently treated these restraining words as empty syllables and the restriction itself as a fence of empty air because he converted the property into a clamorous and unsightly junk yard. He brought on to the premises some one hundred abandoned automobiles in varying degrees of decrepitude, many reduced to metallic skeletons; he encumbered the land with loose pipe, angle irons, pit posts and other castoff odds and ends.

The grantor George T. Shriver with five other adjoining property owners filed a bill in equity to enjoin Rohanna from a continuing use of the land as a junk yard and nuisance. Rohanna's defense is that if his present use of the premises is in violation of the deed restriction, the violation did not develop spontaneously. But a creeping offense is no less blameworthy than one which arrives precipitately and with full weighted defiance.

Rohanna states further that Shriver was aware of his activities and is therefore estopped from now complaining. But the restriction in the deed is as clear and as armor-plated with prohibition as the English language can make it, and even if Shriver was aware of Rohanna's dereliction, as Rohanna contends and Shriver denies, this would not estop the other property owners from ...


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