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KAJOWSKI v. NULL (01/16/62)

January 16, 1962

KAJOWSKI
v.
NULL, APPELLANT.



Appeal, No. 391, Jan. T., 1961, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1956, No. 8045, in case of Martin Kajowski et al. v. Gordon E. Null et al. Decree affirmed in part and reversed in part.

COUNSEL

Walter G. Horowitz, for appellants.

A. Joseph Rieffel, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Musmanno

[ 405 Pa. Page 590]

OPINION BY MR. JUSTICE MUSMANNO.

During the last decade of the nineteenth century, William H. Higbee owned a large tract of land in Philadelphia County which he carved into lots and sold to various purchasers, the deed in each instance carrying a restrictive covenant as follows: "Under and subject nevertheless to the express condition and restriction that no tavern or building for the sale or manufacture of beer or liquor of any kind or description, no court house, currier establishment, blacksmith, machine shop, livery stable, slaughter house, coal yard, piggery, white lead works, poudrette neats foot oil, lampblack, gunpowder, glue, starch, soap or candle manufactory, tallow chandlery, bone boiling establishment, chemical laboratories or establishment where steam power is used or any building for offensive occupation whatsoever shall at any time be erected, used, or occupied thereon or any part thereof..." (Emphasis supplied)

On November 15, 1922, Reuben J. and Lydia M. Dierwechter, his wife, acquired from this tract a lot located at 4517 Higbee Street. On August 13, 1930, Gordon H. and Isabella E. Null, his wife, purchased lots located at 4514-15-16 Benner Street. On January

[ 405 Pa. Page 59129]

, 1951, Martin J. and Beatrice Kajowski, his wife, bought the land at 4515 Higbee Street. All these persons were, by reason of the above restrictive covenant set forth in their deeds, prohibited from using their premises for any of the purposes therein specified.

When the Nulls took title to their particular land in 1930, it accommodated a two-story dwelling in front and, in the rear, a small two-story frame building. This latter structure, from all descriptions, was a neglected stepchild in the family of buildings in the area. It was old, dilapidated, run-down, unsightly, unpainted, without glass for the windows and lacking electricity, heat or plumbing. On a part-time basis and in a very modified form the Nulls used this ramshackle structure as a screw machine shop from 1930 to 1940. The structure progressively deteriorated with the passing of the years. Windows were boarded up, holes appeared in the roof, exposing the interior to the elements, the floors and steps creaked, birds and cats visited the premises without tidying up the place before they left, and rats made a holiday of the debris-strewn location.

In 1954 the Nulls applied to the local zoning board of adjustment for a permit to remove this ugly duckling of an oversized shanty and erect in its stead a graceful swan of a two-story cinder block building with a 25% increased area. The Kajowskis and the Dierwechters, whose properties adjoined the land of the Nulls in the rear, as well as other neighboring residents, opposed the granting of the permit. The zoning board rejected the application, but the Court of Common Pleas No. 4 of Philadelphia County, on appeal by the Nulls, reversed the zoning board's action, and the Kajowskis and the Dierwechters appealed to the Supreme Court. The Supreme Court affirmed the action of the court of common pleas.

In the meanwhile, the Nulls impetuously went ahead with the cinder block construction. The Kajowskis

[ 405 Pa. Page 592]

    and the Dierwechters warned the Nulls that the building they were racing to finish violated the provisions of the restrictive covenant common to the neighborhood and that they were going ahead at their own risk. The Nulls were apparently willing to so proceed and rushed the building to completion, moved in with machinery, equipment and materials, and began to operate at full blast a full-fledged machine shop with ten workers, in spite of the covenant which specifically forbade the use of the property as a machine shop, and such other ...


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