Appeal from judgment of Court of Common Pleas of Chester County, March T., 1971, No. 147, in case of John A. Scott and Anna L. Scott, his wife, v. Kenneth B. Owings.
Joseph Neff Ewing, Jr., with him Joseph Neff Ewing, for appellants.
Sondra K. Slade, with her Fronefield Crawford, and Crawford & Diamond, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.
[ 223 Pa. Super. Page 482]
Appellants contend that a restriction on the use of land created in 1929 deeds, covering a 53 acre tract of land, should be declared null and void because such changes have occurred in the neighborhood that the restriction is obsolete and no longer of substantial value to the owners seeking enforcement of it. The lower court upheld the restriction and we affirm.
The tract of land is located in Tredyffrin Township, Chester County. Appellants, who own an eight acre lot in the tract, seek to lift a restriction which prohibits the construction of dwelling houses on lots of less than two acres. If the restriction is lifted, appellants intend to subdivide their tract and build dwellings upon lots of two-thirds of an acre as permitted by the township zoning ordinances. Appellant, an experienced home builder in the area, purchased the lot in 1957 with record notice of the restriction. Appellees, owners of dwellings on lots each in excess of two acres, purchased their lots with notice of, and relying upon the restriction.
Within the restricted tract are eight dwellings, and, except for spaces cut out for the location of dwellings and driveways, the tract is thickly wooded and undeveloped. The tract is bounded on the north by Pugh Road, on the east by Old Eagle School Road, and on the south by Weadly Road. There is no identifiable boundary on the western part of the tract.
When the restrictions in question were imposed by the original grantor, the area was basically rural, although some residential development had already begun directly east of the tract along Old Eagle School Road, and directly north of the tract along Pugh Road.
Since that time the remote areas to the south, east, and west of the tract have undergone considerable single family residential development, most of which is
[ 223 Pa. Super. Page 483]
on lots of 30,000 square feet. Only one of the residential subdivisions is directly adjacent to the 53 acre tract. That division adjoins the tract on the southwest corner and extends north along approximately one-half of the western boundary. To the north of this subdivision (adjoining the northwest boundary of the tract) the land is free of concentrated development. Northeast of the tract is a large and totally undeveloped area of land used as a tree nursery. Approximately one-quarter to one-half of a mile north of the tract is a small subdivision development. Beyond that, there is virtually no residential or other development of the land to the north, northeast, or northwest of the tract.
Within the tract itself, there are four violations of the restriction -- dwellings built on lots of less than two acres. The lower court found as a fact that appellees were not aware that the dwellings were in violation of the ...