Appeal, No. 122, Jan. T., 1954, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1952, No. 6838, in case of John H. LaRue et al. v. Ralph Weiser et ux. Decree affirmed. Bill in equity. Before REIMEL, J. Adjudication filed finding for defendants; exceptions to adjudication dismissed and final decree entered. Plaintiffs appealed. BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.
William Austin Meehan, with him Philip Stern and Meehan, O'Brien & Richette, for appellants.
Harry Shapiro, with him Irwin Edward Robinson and Shapiro, Rosenfeld, Stalberg & Cook for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ. .
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The court below refused to issue an injunction restraining defendants from extending their building into
a restricted area. Plaintiffs appeal from its decree so holding and dismissing their bill of complaint.
In 1887 to Blake Mutual Land Improvement Company owned land in the northeastern section of Philadelphia bounded on the east by Dungan Street, on the west by Oxford Avenue and Rising Sun Avenue, on the north by Bleight Street, and on the south by Cottman Avenue. It recorded a plan of lots to be laid out in the tract and, in its original deeds, created a building restriction affecting each of the lots it conveyed. This restriction provided, inter alia, that no building should ever be erected within 14 feet of any street or avenue upon which the lot should front. In 1891 the deed to defendants' predecessor in title contained this restriction. At that time the entire tract consisted of farm land with a single house thereon, but it developed into a built-up residential area. Originally Cottman Avenue was known as Township Lane and was legally opened to a width of 33 feet but in 1891 it was established with a cartway of 40 feet and two 14-foot sidewalks and in the period between 1912 and 1915 it was further widened to 100 feet with a cartway of 60 feet and two 20-foot sidewalks.
Defendants' property consists of a furniture store building at 1225-1229 Cottman Avenue; they also own a detached dwelling house, 1231 Cottman Avenue, in which they reside. Plaintiffs own and occupy premises on the north side of Cottman Avenue between Dungan and Claridge Streets, but those who are most interested herein are in the block between Montour and Claridge Streets, where defendants' property is located. Defendants, having obtained a permit for the purpose, have started to extend the front of their store building southerly for some distance into the 14-foot restricted area, where they propose to erect a one-story addition completely enclosed in glass, and in
which it is their intention to display their furniture, carpets, linoleum and rugs.
The first subject of controversy between the parties is in regard to the original object of the restriction. Defendants contend, and the court below was of the opinion, that it was designed merely for aesthetic purposes, that is, to insure the better appearance of the streets and to preserve the residential character of the neighborhood. Plaintiffs, on the other hand, urge that it was also to protect the light, air and view of the residents of the houses which, it was anticipated, would occupy the tract, and it is, of course, true that while an easement to light and air cannot be acquired in Pennsylvania by prescription and the doctrine of ancient lights is not part of our law, an easement to light and air may be acquired, as any other easement, by express or implied grant.*fn1
Defendants' principal contention is that, whatever the purpose of the restriction may have been, the changes that have taken place in the area in the 63 years since the restriction was originally created would now make any enforcement of it in equity wholly unjust, impractical, and harmful to the entire district. It appears that during that period the character of the neighborhood has markedly changed. The area covered by the properties of these plaintiffs and defendants has been zoned ...