February 6, 1956
PARK LANE FOR CONVALESCENTS, INC.
Appeal, No. 286, Jan. T., 1955, from order of Court of Common Pleas No. 5 of Philadelphia County, in Equity, Dec. T., 1954, No. 9682, in case of Arthur W. Jones v. The Park Lane for Convalescents, Inc.; and High Oaks, Inc. Order affirmed; reargument refused March 6, 1956.
Lewis H. Van Dusen, Jr., with him John E. Walsh, Albert M. Hoyt, Jr. and Drinker, Biddle & Reath, for appellant.
Simon Pearl, with him Maxwell E. Verlin, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
[ 384 Pa. Page 270]
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiff appeals from the refusal of the court below to enjoin an intended use of defendant's*fn1 property on the ground that it would constitute a violation of a restriction in the title deeds.
Plaintiff is the owner of premises fronting on the southwesterly side of Wissahickon Avenue in the 22nd Ward of the City of Philadelphia, a portion of which he acquired in 1914 and another portion in 1924. On the northeasterly side of Wissahickon Avenue is the property 6611 Wissahickon Avenue now owned by defendant, to which it was recently conveyed by High Oaks, Inc., formerly known as The Philadelphia Sanitorium Inc. for Christian Scientists, it having been conveyed to the latter as part of a larger tract in 1952 by Little Sisters of the Assumption School for the Training of Nurses. It is subject to a building restriction which was imposed upon the tract by one Anna M. Smith, in conveyances by her in 1910 and 1912, as follows: "That the said lot or piece of ground hereby granted shall be used only for the purpose of erecting thereon private dwelling and the appurtenances thereto and that not more than two such dwelling and the appurtenances thereto shall be erected thereon. Further that the cost of erection of each of such dwellings
[ 384 Pa. Page 271]
shall be not less than $10,000 and Further that no stable or outbuilding shall be erected thereon within a distance of 150 feet of Wissahickon Avenue ...". Plaintiff's property is subject to a similar restriction imposed upon it in the deeds by which he acquired title from the son of Anna M. Smith, to whom she had devised her residuary estate.
In 1943 all the parties interested in these restrictions, including the present plaintiff and defendant's predecessor in title, agreed in writing that they should be modified so as to permit the use of the premises affected thereby for the purposes of the organization of the Little Sisters of the Assumption School for the Training of Nurses, and to permit the erection of any additional building or buildings on the premises for such purposes, but the restriction otherwise to remain in full force and effect. Little Sisters of the Assumption School for the Training of Nurses is a charitable institution which conducts a novitiate for educating postulants and novices studying to become nursing sisters of the sick poor, and it occupied the premises in question for such purpose until 1952 when it conveyed the property to the Philadelphia Sanitorium Inc. for Christian Scientists, now High Oaks, Inc. The latter presently operates a private sanitarium upon premises 609 West Hortter Street, to the rear of a portion of its Wissahickon Avenue premises. The Park Lane for Convalescents, Inc. plans to use its property as a convalescent and nursing home, and for that purpose to make the necessary interior alterations but no external changes or additions. It is that proposed use which plaintiff sought to have enjoined in the court below.
In order properly to consider and determine the question involved it is important at the outset to have in mind the applicable legal principles that have been enunciated, frequently reiterated, and consistently applied,
[ 384 Pa. Page 272]
through a long succession of cases decided by this court.*fn2 However variously phrased, they are, in substance, that restrictions on the use of land are not favored by the law because they are an interference with an owner's free and full enjoyment of his property; that nothing will be deemed a violation of a restriction that is not in plain disregard of its express words; that there are no implied rights arising from a restriction which the courts will recognize; that a restriction is not to be extended or enlarged by implication; that every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner. Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein
[ 384 Pa. Page 273]
as affecting the health, welfare and comfort of the neighbors. A building restriction and a use restriction are wholly independent of one another, and, in view of the legal principles above stated, the one is not to be extended so as to include the other unless the intention so to do is expressly and plainly stated; to doubt is to deny enforcement. As examples of cases where the manifest intention was to restrict both the erection of buildings and their use may be cited Johnson v. Jones, 244 Pa. 386, 90 A. 649, where the restriction was that "'... nothing but a church or dwelling house ... shall ever be erected upon any part of the said land; that none of the structures so erected shall ever be used as a business place, manufactory or drinking saloon, or used for any other purpose than a dwelling house, or its necessary outbuildings or a church.'" So, also, in Drucker v. Russell, 279 Pa. 443, 124 A. 92, where the restriction was that "... each of said building lots shall be improved with a dwelling house at least three stories high, ... and that no portion of the said lots of ground or of the buildings to be erected thereon shall be used for the manufacture or sale of intoxicating liquors, or for any other industrial or commercial purpose." Likewise in Taylor v. Lambert, 279 Pa. 514, 124 A. 169, where the restriction was that "' ... there shall not be erected upon the above described ... lot of ground or any part thereof a building or buildings designed for any other purpose than a private dwelling house, and that no such building erected thereon shall be occupied or used for any purpose other than a private dwelling house.'" Again, in Fox v. Sumerson, 338 Pa. 545, 13 A.2d 1, where the restriction was that "'... the buildings to be erected upon the land herein described shall be nothing other than private dwelling houses; ... that no building or buildings to be erected shall be at any time hereafter forever altered into or
[ 384 Pa. Page 274]
erected on either of the lots, so far as that building is concerned, the covenant is at an end."
In Hoffman v. Parker, 239 Pa. 398, 86 A. 864, the restriction was that no buildings should be erected on the land other than dwellings, churches, apartment houses, and schools. An occupant of one of the dwellings, without changing the exterior of the house, set up a store in the basement for the sale of foodstuffs. The court said that this did not violate the restriction in regard to the erection of the buildings and that if it had been the intention to prohibit such use it would have been a simple matter to frame the language which would so provide, and the court added (pp. 399, 400, A. p. 865): "Such restrictions as those under consideration are lawful, but they are not extended beyond their plain and necessary intent. As they operate to limit the uses to which an owner might lawfully devote his property, they must be strictly construed. There is no equitable extension of their terms, and the court cannot read into them an intention which does not plainly appear from the words of the restrictions." The building having been erected as a dwelling house, and not having been altered in any external way, the court held that the use to which it was put was not a violation of the restriction, and that "the matter of the external construction is the one with which the agreement deals."
In Hamnett v. Born, 247 Pa. 418, 93 A. 505, the restriction was that no more than one dwelling house should be erected or maintained on each 40 feet of land. It was held that it was not violated by the erection of duplex houses each of which would be occupied by two families. The court said (p. 420, A. p. 505): "As was said of a similar restriction in St. Andrew's Churchhs App., 67 Pa. 512, the covenant is directed against the building alone, not its subsequent use, and when a
[ 384 Pa. Page 276]
building is lawfully erected on either of the lots, so far as the building is concerned the covenant is at an end." This decision was followed in Rohrer v. Trafford Real Estate Company, 259 Pa. 297, 102 A. 1050, and Peirce v. Kelner, 304 Pa. 509, 156 A. 61.
The above and other pertinent authorities are collated in Kauffman v. Dishler, 380 Pa. 63, 110 A.2d 389. In that case a restriction that not more than one house, same to be detached or semi-detached, and private garage, should be erected on each lot, was held not to prohibit the building of three-unit apartment houses even though these would be occupied by more than one family. The conclusion there reached from an examination of the cases was (pp. 68, 69, A. p. 391) that "... all the authorities are uniform to the effect that a restriction against the erection of a building other than a 'house' or a 'dwelling house' is a restriction only in regard to the type of construction and not the subsequent use, and that if any restriction on use is intended it should be plainly expressed and not left to implication."
Appellant relies upon the decision in the case of Gerstell v. Knight, 345 Pa. 83, 26 A.2d 329, where a covenant in a deed provided that one "residence" only should be built on the land and it was held that only one family should reside on the land and that the house which had been built thereon could not be altered into residences for two families. The decision turned wholly on the words "one residence only" which the court, whether correctly or otherwise, chose to distinguish from "one dwelling house" or "one building" as embodying the connotation of the use of the land for occupation by only one family.
The authorities give full support to the court's denial of an injunction to enforce this present restriction.
The final order and decree of the court dismissing the complaint is affirmed at the cost of appellant.
[ 384 Pa. Page 277]
DISSENTING OPINION BY MR. JUSTICE BELL:
The question involved is narrow: What is the proper construction of this building restriction in the light of the "record facts"? The restriction is: "Under and subject to the following Building Restrictions that the said Property shall be used only for the Purpose of erecting thereon Private dwellings*fn1 and the appurtenances thereto and that not more than two such dwellings and the appurtenances thereto shall be erected thereon, ...."
The Complaint in Equity averred: "12. The plaintiff avers that the neighborhood in which the premises of plaintiff and defendants are located is a residential one and that the proposed use of the premises owned by defendants ... would be incompatible with residential use; that such proposed use would require the frequent use of the proposed new driveway running from Wissahickon Avenue by patients, physicians, employees and visitors of the nursing homes which the defendants propose to operate; that such proposed use would cause the plaintiff to be subjected to objectionable noises, particularly in the summer months; and that such proposed use would deprive plaintiff of the enjoyment of plaintiff's property as a private dwelling ...."
Defendant not only did not deny that this was a residential neighborhood, but by filing preliminary objections admitted as true all the facts which were properly pleaded: Narehood v. Pearson, 374 Pa. 299, 96 A.2d 895; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491.
[ 384 Pa. Page 278]
In my opinion the parties clearly intended "that the said property shall be used only for ... private dwellings and appurtenances." The majority opinion limits the restriction to original erection and permits a private dwelling house, one day after erection, to be thereafter radically altered and "used" for an entirely different purpose. That is contrary to the language, meaning and intent of the restriction. Although the majority opinion is careful not to say so, it logically and necessarily holds that the owner of the servient tenement can one month or one day after the erection of a private dwelling completely remodel the interior or exterior of the private dwelling or both, and since the restriction has no application to use - which ignores its use provision and clear intent - change it into and use it for a store or a commercial building or a sanitarium or a building for any and every other conceivable use. I believe this is so unreasonable as to be absurd.
Whenever two interpretations of a written instrument are reasonably possible, and one construction produces a reasonable result which is in accord with the likely or clearly possible object, purpose and intent of the parties, and the other construction produces a result which is unreasonable or absurd, the latter construction should never be adopted.
Furthermore, this restriction is controlled by Gerstell v. Knight, 345 Pa. 83, 26 A.2d 329. In Gerstell v. Knight, 345 Pa., supra, the owner, in 1924, conveyed property by deed containing the following covenant: "... one residence only shall be built on the above described tract of land and said residence shall not be nearer to Shawnee Avenue than twenty (20) feet." The defendants subsequently acquired the land and constructed a magnificent residence which complied with the restriction. In 1940 they proposed to
[ 384 Pa. Page 279]
The majority opinion relies, in the last analysis, on four cases, each of which is unquestionably distinguishable from the instant case. The first case, and the one upon which both the majority opinion and the appellee place most reliance is (the so-called leading case of) St. Andrew's Lutheran Church's Appeal, 67 Pa. 512. The restriction in the deed in that case was: "... no building should be built upon either of the several lots of ground, to be used for purposes other than as and for a private dwelling-house, office, ... or stable; .... Provided ... that whenever either of the said lots of ground shall be improved by buildings as herein above-mentioned, ... then and from thenceforth the said restrictions ... shall, ... be deemed and considered of no further force and effect,...." The majority opinion accurately says that this restriction "was not intended as a perpetual inhibition, but [by its specific language] was confined to the first improvement. It was there stated by Mr. Justice SHARSWOOD (pp. 518, 519) that 'The covenant is directed against the building alone, not the subsequent use, and when a building is lawfully erected on either of the lots, so far as that building is concerned, the covenant is at an end.'" The language of Justice SHARSWOOD was undoubtedly appropriate to the covenant there involved, but equally clearly, it has no effect or application to the totally different covenant here involved.
Hoffman v. Parker, 239 Pa. 398, 399, 86 A. 864, was the second case heavily relied upon by the majority. It likewise is clearly distinguishable because of its facts. The restriction prohibited the erection of any building other than dwellings, apartment or flat houses, churches, schools or private garages. A dwelling house was erected and as the Court there found: "... there has been no change in the building, except that in the basement the defendant has erected shelves on which
[ 384 Pa. Page 281]
she places her goods [for sale of food]". How vastly different are the facts in that case from the facts in the instant case. What the majority opinion has likewise inadvertently overlooked is that the defendant still used the dwelling house as her dwelling house. Obviously that case is no authority to change a private dwelling house into an enormous sanitarium, or to change it, as the majority would permit, one day after its erection, into different building and any different use which defendant may desire.
Hamnett v. Born, 247 Pa. 418, 93 A. 505, was the next case relied upon by the majority. In that case the restriction was that "'... for and during a period of ten (10) years ... no more than one dwelling house shall be erected or maintained on each 40 foot of land.'" This Court held that the restriction was not violated by the erection of a duplex house since it would still be "one dwelling house" within the meaning of the restriction, even though used as such by two families.
The fourth authority relied upon in the majority opinion was Kauffman v. Dishler, 380 Pa. 63, 110 A.2d 389. In that case the restriction was "'That not more than one (1) house, same to be detached or semi-detached, and private garage shall be erected on each lot ...." This restriction was held not to prohibit the erection of a three-unit apartment house, since in the Court's opinion that came within the definition of a house as used in that restriction. The question involved and the Court's decision were thus tersely and accurately stated by Chief Justice STERN, who wrote the opinion: "The question concerns the scope of the term 'house'*fn3 as used in a building restriction in a
[ 384 Pa. Page 282]
deed .... It is our conclusion, therefore, that there is nothing in the present restriction that 'not more than one house shall be erected on each lot' which would justify an interpretation that would make it read: 'that no more than one single-family house shall be erected on each lot.'"
It cannot be contended by any stretch of language that the words "private dwellings" used in the present restriction can be construed to mean or include a store or a commercial building or a sanitarium;*fn4 the only way the majority opinion attempts to justify its construction is to hold that the restriction in the instant case applies only to the original erection and does not affect or prohibit the material alteration of the dwelling for an entirely different use.*fn5
Although broad general language can be found in some opinions with respect to subsequent use, such language must be read in connection with and limited to the restriction and the facts in that particular case. See for example, St. Andrew's Lutheran Church's Appeal, 67 Pa., supra. An analysis of each case demonstrates that there is not a single authority which limits a restriction such as the present one to original erection and authorizes a subsequent conflicting or diametrically different use.
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We likewise note that the majority opinion says: "... A building restriction and a use restriction are wholly independent of one another, ...." This independence, as we have seen, is not substantiated by the cases. In my opinion, both logic and the law demand that the converse be true, i.e., that building and use restrictions are dependent, one on the other, unless the converse can be clearly shown.
I would reverse the order and decree of the lower court.
Mr. Justice ALLEN M. STEARNE joins in this dissenting opinion.