Appeal from decree of Court of Common Pleas of Lancaster County, Equity Docket No. 13,302, in case of Hyman Mishkin v. Temple Beth El of Lancaster.
John W. Beyer, with him Louis Weisman, and Arnold, Bricker, Beyer & Barnes, for appellant.
Robert Ruppin, with him Charles A. Achey, Jr., for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
This appeal is from a final decree entered in the court below enjoining the defendant from continuing the construction of a fire tower on its property in the city of Lancaster, allegedly in violation of a building restriction included in a deed and agreement in the defendant's chain of title, and ordering the defendant to remove that portion of the fire tower already constructed.
The building restriction which the fire tower is claimed to violate was created in a transaction between the prior owners of plaintiff's and defendant's abutting properties. In 1904 the south wall of the building located on the land now owned by the plaintiff was 4 1/2 inches from the north boundary of the land now owned by the defendant but the foundation of the building extended onto this 4 1/2 inch strip. On September 1, 1904, the owners of plaintiff's land by quit-claim deed, recorded on April 14, 1905, conveyed to the owner of defendant's land the title to this 4 1/2 inch strip. The deed specifically gave defendant's predecessor in title, his heirs and assigns, the right to build on this strip up to and against the south wall of the building on
the grantor's land, but reserved to the grantor, his heirs and assigns, the right to maintain the foundation wall thereon. The deed in pertinent part further provides: "but nothing in this grant shall be construed so as to permit . . . [defendant's predecessor] his heirs and assigns, to close up the two (2) windows one on the second and one on the third floor now located and fixed near the front or western part or portion of said wall which said two (2) windows are at all times hereafter to be allowed to remain open in accordance with a certain writing executed or about to be executed. . . ."
The referenced writing was executed by the owners of both properties on September 16, 1904, and was recorded on January 20, 1905. It provides in part that "at no time hereafter shall any building be erected . . . [on defendant's lot] nearer to the present city house line . . . than twenty feet nor shall any porch be erected on said lot the front line of which shall be nearer to said City house line on Lime Street than ten feet nor shall the North line of any such front porch be nearer to the South line of the said property . . . than eight feet." The writing also contains the following recital: "And Whereas, there are now located and fixed near the front or western part or portion of the South brick wall of the dwelling house No. 31 North Lime Street two windows, one on the second and one on the third floor about eight or nine feet East of the front line of said dwelling which are at all times hereafter to be allowed to remain open. . . ." The writing then provides that the owners of plaintiff's property shall have "the right, liberty and privilege of maintaining said two windows . . . as the same are now located and fixed, free and clear of any obstructions except a dwelling house and front porch erected in accordance with the above reservations as to their front lines." (Emphasis added.) Finally the agreement provides, in pertinent part: "nothing herein shall be construed to prohibit
[defendant's predecessor in title] his heirs and assigns from constructing on his said property any uncovered front porch extending Northward to the South wall of the property, No. 31 North Lime Street, the intention being hereby to permit the maintenance of said two windows unobstructed except as to any covered porch which may be erected" in accordance with the above restrictions.
The lower court concluded that the deed and written agreement create a setback restriction on defendant's land and ruled that the construction of the fire tower involved is "in plain disregard of the restriction expressly stated in clear and unambiguous language in the ...