Appeal from decree of Court of Common Pleas of Erie County, Feb. T., 1963, No. 3, in case of Norman L. Peters and Alice E. Peters, his wife v. Russell T. Davis and Arlene E. Davis, his wife.
Robert N. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellants.
Bernard F. Quinn, with him Quinn, Leemhuis, Plate & Buseck, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
This appeal involves, primarily, the character and the extent of the relief to be afforded by a court of equity for an intentional violation of building line restrictions contained in a deed.
On August 26, 1960, Russell T. Davis and Arlene W. Davis (Davis), purchased from Lake Cliff Motels, Inc., one lot and part of another lot in Lake Cliff Park Addition, Lawrence Park Township, Erie County. Both lots were subject to certain building restrictions established in 1950 by the then owners of the land and entitled "Declaration of Protective Covenants and Restrictions of Lake Cliff Park Addition Subdivision."*fn1 This "Declaration" made reference to a map duly recorded in Erie County which described the entire property subject to the restrictions. Two of such restrictions are presently pertinent: (1) restriction 2 which provided "No building shall be located nearer to the front line or nearer to the side street line than the
building restriction lines shown on the recorded plan"; (2) restriction 7 provided "That the Purchaser shall in every respect comply with the rules, regulations and ordinances of the Township of Lawrence Park in the obtaining of building permits and in the securing approval of the Lawrence Park Planning Commission before the erection of any building on said property." The "Declaration" further provided that: "If the parties hereto or any of them, or their heirs or assigns shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or persons owning any real property situated in said development or subdivision, to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenants and to prevent him or them from so doing or to recover damages or other dues from such violation." The restrictions contained in the "Declaration" are similar to those contained in the Lawrence Park Township Zoning Ordinance as applicable to the Davis property.
In the Lake Cliff Motels-Davis deed, Davis expressly agreed to comply with all these restrictions. Under these restrictions and the zoning ordinance in effect in the area where the Davis property was located, there were definite and specific setback and side yard requirements. Applying these requirements to the Davis property, the setback line for a building thereon was to be 25 feet from Halley Avenue and 30 feet from Lakeside Drive with a side yard restriction of 6 feet. In June 1961, Davis employed one Robert Kraft, a building contractor, to lay the building stakes for a proposed dwelling house on the Davis property but he would not do so until he was assured of the setback building lines under the restrictions and the zoning ordinance. Davis and Kraft, together with the Township Building Inspector and Zoning Administrator, went to the Davis property prior to any construction thereon
and placed the building stakes where they were to be. Sometime thereafter, the Township Building Inspector and Zoning Administrator again visited the property to discuss with Davis compliance with the zoning ordinance. On the reverse side of Davis' building permit, he sketched the house on the lot showing the required setback lines and discovered a 3 foot violation of the setback line on Halley Avenue. The zoning administrator then granted a 2 foot setback variance along Halley Avenue and instructed Davis to move his dwelling back 1 foot.
Construction of Davis' dwelling was begun. Prior to completion of the dwelling, on August 23, 1962, Norman L. Peters and Alice E. Peters (Peters), adjoining and abutting property owners, through their counsel notified Davis that he was violating the setback lines on Lakeside Drive and Halley Avenue and requested that the offending portions of the building, then in construction, be removed from the restricted areas. Actually, there was a 7.45 foot setback violation plus a 2.6 foot roof overhang*fn2 on the Halley Avenue side, a 3 foot violation along Lakeside Drive and a 2.6 foot side line violation on the southwest side of the dwelling.*fn3 Peters' letter noted the detrimental effect which such violations had upon Peters' easements, under the restrictions, for light, view and air over the land of ...