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.
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
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,
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 ...