Appeal, No. 92, Jan. T., 1957, from decree of Court of Common Pleas of Lycoming County, May T., 1955, No. 4, in equity, in case of Felix Daniels et al. v. James V. Notor et al. Decree reversed. Equity. Before WILLIAMS, P.J.
Paul W. Reeder, with him Seth McCormick Lynn and Furst, McCormick, Muir & Lynn, for appellant.
No argument was made nor brief submitted for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The plaintiffs, husband and wife, instituted this suit in equity seeking to restrain the defendants, also husband and wife, from the use of a five-unit motel, which they were erecting on their property, on the ground that it constituted a violation of a restrictive covenant, running with the land, in the deed to the defendants. The court below granted the relief prayed for, and, from the final decree entered, the defendants took this appeal.
In 1928, Miss Ellen J. Bennett acquired by grant a tract of land in Loyalsock Township, Lycoming County. In 1929 she caused a portion of the tract to be subdivided into 81 lots, each measuring approximately 50 by 150 feet. The lot plan, which was in the shape of a parallelogram, was bisected on its longitudinal axis by Pennsylvania State Highway Route 15 which in the locality runs substantially north and south. On the east side of Route 15 there were 40 lots in 2 rows of 20 lots each with the rows separated by a 20-foot alley, and, to the west of the highway, there were 41 lots divided into 2 rows, also separated by a 20-foot alley. The subdivision plan was never recorded, but, between 1929 and 1948, Miss Bennett sold and conveyed several of the lots on the west side of the highway according to the boundaries as shown on the plan. There were involved all told in these conveyances 16 lots to 5 grantees. Each of the deeds bore a restrictive covenant identical to the first deed which was executed and delivered in 1929. The presently material portion of this covenant reads as follows, - "No store gasoline station or other commercial enterprise shall be erected or conducted upon said land, but it shall be used only for a private dwelling. The premises shall at no time be used for any immoral or illegal purpose."
Following Miss Bennett's death, her executor, on November 24, 1948, conveyed her interest in the tract, including the unsold lots in the plan, to Charles C. Brannaka without reciting any restrictions whatsoever in the deed. Brannaka, in turn, conveyed to four grantees 6 of the lots located on the western side of the highway and included a restrictive covenant in the deeds identical to that contained in Miss Bennett's first grant. He also sold 2 1/2 lots abutting the eastern edge of the highway and included a like restriction in those deeds. However, Brannaka sold the 2 southernmost lots abutting the western side of the highway without any use restrictions and later conveyed all of the remaining 37 1/2 lots in the eastern portion of the tract to one Carl Bauer without any restrictions other than that "The premises nor any part thereof, shall [not] be used or occupied for the purpose of the sale or dispensing of intoxicating beverages, or for the purpose of maintaining a commercial junk yard." The net result of all these transactions is that, of the original 81 lots embraced by Miss Bennett's plan, over 40 of them may now be used for commercial enterprises. The restricted lots include the first 18 contiguous lots on the western side of the highway proceeding from north to south (a total highway frontage of 1038.2 feet), some few lots in the row behind the 18 lots just mentioned and 2 1/2 lots abutting the opposite side of the highway.
Both the plaintiffs and the defendants own and occupy lots which bear the restrictive covenants imposed by Miss Bennett, the plaintiffs having acquired their title directly from her in 1946, and the defendants having acquired their title by mesne conveyance in 1950.
In 1949 the plaintiffs built a dwelling on their 3 lots, fronting on the western side of the highway, and have since resided there. They later acquired several lots to the ...