James R. Humer, Edward W. Harker, Carlisle, for appellants.
William A. Kramer, II, Kramer & Kramer, Carlisle, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion.
This appeal arises from a final decree in equity which granted appellee, S. H. Deitch, an injunction against appellants, Lloyd B. Bier and Esther M. Bier, his wife, enjoining
them from operating a barber shop, in violation of a restrictive covenant prohibiting any business or commercial use of certain property.
The facts surrounding this appeal are as follows: In 1949, appellee, as owner of a tract of land in the village of West Hill, Cumberland County, subdivided a portion of this tract into eighteen numbered and six unnumbered lots. The deeds to all of the lots contained the following restriction: "no building or any part thereof, shall be used for any business or commercial use or purpose." Appellee retained an adjoining unrestricted portion of the original tract of land as his residence, and his son operates a school bus parking and maintenance facility on the same tract. West Hill is a rural residential area of approximately fifty homes.
On April 30, 1973, appellants purchased a restricted lot within the subdivision. They subsequently secured a written release of the business restriction from forty-two landowners within the subdivision and the village of West Hill. Appellee was not a party to the release agreement. On June 6, 1973, appellee, upon learning of the proposed conversion into a barber shop of a two-car garage on appellants' property, informed appellants that such a use was in violation of the restrictive covenant in their deed. On July 7, 1973, appellants commenced the alteration of the garage, and on July 25, 1973, appellee filed a complaint in equity to enjoin this construction and subsequent business use of the property. The chancellor took testimony and enjoined the use of the garage as a barber shop. Appellants filed exceptions, which were denied by the court en banc.
Appellants argue that the court below committed an error of law when it refused to consider the operation of a school bus facility on the adjoining tract of land owned by appellee as a relevant and material fact affecting the enforceability of the restrictive covenant. We agree.
Section 564, Restatement of Property (1944), ...