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SCOTT ET UX. v. OWINGS (03/27/73)


decided: March 27, 1973.


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.

Author: Hoffman

[ 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of land, should be declared null and void because such changes have occurred in the neighborhood that the restriction is obsolete and no longer of substantial value to the owners seeking enforcement of it.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 restriction. The four dwellings were built approximately 15 years ago.

That there have been changes in the general area in which the tract is located is not disputed. The question is whether there have occurred such changes in the neighborhood that the restriction is no longer of substantial value to the owner seeking enforcement. Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643 (1968); Todd v. Sablosky, 339 Pa. 504, 15 A.2d 677 (1940); Restatement, Property, § 564. The value referred to must be in the physical use or enjoyment of the land, and, the restriction must, in some way, make the use or enjoyment more satisfactory to the owner's physical senses. Schulman v. Serrill, supra; Restatement, Property, § 537.

Appellant's exhibits (aerial photographs, highway and zoning maps) depict an area encompassing the entire township and parts of the adjoining counties. Much of the area shown is irrelevant to our inquiry because only the immediate and not the remote neighborhood

[ 223 Pa. Super. Page 484]

    should be considered in evaluating the effect of changes upon the restricted tract. Schulman v. Serrill, supra; Price v. Anderson, 358 Pa. 209, 218, 56 A.2d 215 (1948).*fn1

As we previously indicated, the northern, eastern, and northwestern areas adjacent to the tract have not undergone any dense residential development. The dwellings which have been built along Pugh Road to the north, and Old Eagle School Road to the east are but a part of construction which began before the restrictions were imposed, and thus cannot be properly viewed as significant changes in the neighborhood or changes not contemplated by the original grantor. The only dense development which has occurred in the area is the south and southwest of the tract, a very small portion of the adjacent neighborhood.

After a careful review of the record, the aerial photographs and maps supplied by the parties, we are of the opinion that, notwithstanding the changes which have occurred in the area, there have not been such changes in the immediate neighborhood that enforcement of the restriction is a useless act.*fn2 The restriction

[ 223 Pa. Super. Page 485]

    continues to benefit the owners seeking enforcement thereof by preventing the encroachment of dense residential development and the attendant losses of space and privacy and the spoliation of the natural sylvan landscape. The dwellings within the tract, despite the changes in the neighborhood, remain secluded with considerable wooded and undeveloped acreage surrounding them. Development of the appellant's acreage in the manner proposed by him*fn3 would be likely to destroy the present nature of the tract,*fn4 and considerably lessen the advantages secured to the appellees by the enforcement of the restriction. These advantages are of certain value to dominant owner's physical use and enjoyment of the land. We can therefore conclude that "the locality has not reached the point when enforcement of the covenant . . . for the property owner can be said to be a useless act." Loeb v. Watkins, 428 Pa. 480, 486, 240 A.2d 513 (1968) (concurring opinion).

The judgment of the lower court is affirmed.


Judgment affirmed.

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