Appeal, No. 12, Jan. T., 1958, from decree of Court of Common Pleas of Montgomery County, Feb. T., 1956, No. 6, in case of Morton P. Rome et ux. v. Charles A. Rehfuss et ux. Decree affirmed.
Victor J. Roberts, with him High, Swartz, Childs & Roberts, for appellants.
Daniel Marcu, with him Marcu, Marcu & Marcu, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
The decree of the Court below is affirmed on the following excerpts from the adjudication and opinion of Judge DANNEHOWER of the Court of Common Pleas of Montgomery County:
"Plaintiffs seek to enjoin the defendants from using their adjacent lot as the site for a dwelling house, on the ground that the erection of an additional dwelling upon the parcel, of which defendants' lot is a subdivision, would violate a restrictive covenant, imposed by the common owner of plaintiffs' and defendants' respective properties, providing, '... that no more than one mansion or dwelling house ... shall be erected ...' on each parcel.
"The action is predicated upon the allegation that the erection of an additional dwelling would violate the literal terms of the covenant and would materially interfere with the plaintiffs' right to quiet enjoyment of their property and cause them irreparable damage.
"To the plaintiffs' complaint an answer was filed denying that the defendants' lot is under and subject to a covenant or restriction; averring that the plaintiff has violated the same restriction; and that the covenant is no longer valid and should not be enforced due to changed conditions in the neighborhood.
"A preliminary hearing was held, exhibits admitted and testimony was heard, all of which were later submitted, by agreement of counsel, in lieu of a final hearing." ...
"The facts presented in this case indicate that the restriction, which had been imposed upon the land conveyed to Onderdonk in 1893, was for the benefit of the land retained by Lippincott, and since it was a restriction 'touching and concerning' the use of the land itself, it was a 'covenant running with the land' unto and against successive owners in the future. This made the Onderdonk parcel the servient tenement and the land retained by Lippincott the dominant tenement.
"The lot now owned by the plaintiffs and on which they have their dwelling is a part of the land originally retained by Lippincott and is accordingly the dominant tenement with respect to the defendants' lot in the present case. Therefore, the covenant, as to the defendants' lot, is prima facie valid and subsisting, and the plaintiffs, as ...