Appeals, Nos. 87 and 88, Jan. T., 1958, from decrees of Court of Common Pleas of Montgomery County, Sept. T., 1954, No. 9 and Nov. T., 1954, No. 31, in case of Samuel Moyerman et ux. v. Jules Glanzberg et al. and in the matter of petition of Theodore I. Goodman. Decrees affirmed; reargument refused February 10, 1958.
Roland J. Christy, with him Samuel Moyerman, in propria persona, for appellants.
Michael H. Egnal, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
On August 28, 1953, Samuel Moyerman and his wife, the appellants, conveyed to Jules Glanzberg and his wife a vacant lot in Cheltenham Township, Montgomery County. This lot had a frontage of 80.38 feet, a depth of 175 feet and a rear width of 58.89 feet. At the same time the appellants granted to the Glanzbergs an easement or right of way over a 25 foot wide driveway which ran the length of the westerly side of the lot. The title to the driveway was retained by the appellants. Apparently the Glanzbergs were acting as straw parties in this transaction and they conveyed title to the lot and rights to the easement to Theodore I. Goodman,*fn1 the appellee in both these appeals.
On September 10, 1953, the appellee applied to the township building inspector for a permit to erect a dwelling on this lot and in his application incorrectly stated that the lot had a frontage of 105.38 feet and a rear width of 80.74 feet. From that misstatement of the dimensions of the lot arises the present controversy.
A permit to build was granted to the appellee and a single family dwelling was constructed. Had the lot dimensions actually been as represented in appellee's application for a building permit, the dwelling as located could not have been the subject of objection. However, the lot was actually 25 feet less in frontage and 21.85 feet less in rear width. As a result the completed dwelling - located in accordance with the incorrect dimensions - was built so close to the boundary - between the westerly side of the lot and the driveway - that for a distance of approximately 10 feet it encroached on the driveway to a depth of from 14 to 16 inches. In addition to this admitted encroachment, the location of the dwelling so close to the lot boundary violates § 406 of the Cheltenham Township Zoning Ordinance
of 1929 which requires that dwellings built in "A" Residence Zoning Districts have two side yards, "one on each side of the main building, together having an aggregate width of not less than 30 feet but neither having a width of less than 10 feet".
The appellee, contending that he had become aware of this situation only after the dwelling had been substantially completed, applied to the Zoning Board of Adjustment of Cheltenham Township for the grant of a variance from the side yard requirements of the ordinance. After a hearing, at which appellants and their counsel appeared and strenuously objected, the Board granted the variance. At about the same time the appellants filed a complaint in equity seeking an injunction against the appellee's continued encroachment upon the easement together with damages therefor. The appellants appealed from the decision of the Board of Adjustment and the Court of Common Pleas of Montgomery County heard both that appeal and the equity action at the same time.
Following the hearing in the equity action the chancellor filed an adjudication in which he found, in substance: (1) that the appellee's encroachment upon the easement, although indisputably a continuing trespass, was neither wilful nor intentional but was, rather, the result of a mistake on the appellee's part regarding the quantum of land he had purchased; (2) that the appellee's mistake was attributable to his innocent belief that he was the owner of the driveway and that he had granted the appellants the easement thereover whereas exactly the converse was true; (3) that the appellants were not guilty of laches in failing to initiate their action before the ...