Appeal, No. 177, Jan. T., 1959, from decree of Court of Common Pleas No. 1 of Philadelphia County, March T., 1958, No. 2568, in case of Sandyford Park Civic Association et al. v. John H. Lunnemann et ux. Decree reversed. Equity. Before GRIFFITHS, J. Adjudication filed granting permanent injunction against defendants, Lunnemann; exceptions to adjudication dismissed and final decree entered. Defendants appealed.
Earl Jay Gratz, for appellants.
Charles S. Schermer, with him Ellis C. Schatz, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal from the final Decree of the Court of Common Pleas No. 1 of Philadelphia County enjoining defendants from constructing a garage upon their own property. The facts are essentially undisputed and may be briefly stated.
Defendants, John and Inez Lunnemann, own as tenants by the entireties, a twin or semi-detached dwelling house at 7430 Revere Street in Philadelphia. Defendant's home is part of a perimeter of similar houses bounded on the south by Revere Street, on the west by Guilford Street, on the north by Roosevelt Boulevard, and on the east by Sandyford Avenue. The interior of this perimeter is an open plot of ground
bounded on all sides by the driveways in the rear of the various homes. The owners of the homes on Roosevelt Boulevard and Guilford Street own that portion of the interior plot which lies in the rear of their home. At the present time the interior plot is principally lawn and shrubs although some owners have blacktopped their part of the ground, and one has put up a shed which is used as a playhouse for children.
All of the homes within this perimeter have a garage in the rear of the basement as an integral part of the dwelling house. Defendants desire to erect a garage on their land, namely, their part of the interior plot, separate and apart from their dwelling house. While the rights of an owner of property have in the last decade been restricted by zoning and in other ways limited, an owner of land is still entitled to important rights which are a fundamental part of his liberty. The right of private property - "the inherent and indefeasible right ... of acquiring, possessing and protecting property" - which necessarily includes not only the ownership but also the right of use of private property, is ordained and guaranteed by the Constitution of the United States and the Constitution of Pennsylvania.*fn1 A man has a right to use his own home or property in any way he desires provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) violate any covenant, restriction or easement in his deed; or (3) create a nuisance; or (4) violate any laws or zoning or police regulations which are both Constitutional and valid: Lened Homes, Inc. v. Department of Licenses, 386 Pa. 50, 123 A.2d 406; Lord Appeal, 368 Pa. 121, 81 A.2d 533.
Plaintiffs seek an injunction because the defendants propose to erect a two car ...