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ROBERT F. FEY HUGH DATES AND JUNE E. DATES v. JOHN M. SWICK AND FOREST INVESTMENT CORPORATION (12/17/82)

filed: December 17, 1982.

ROBERT F. FEY; HUGH DATES AND JUNE E. DATES, HUSBAND AND WIFE; WYLLIS W. MEAD, JR. AND CAROL S. MEAD, HUSBAND AND WIFE,
v.
JOHN M. SWICK AND FOREST INVESTMENT CORPORATION, INC. APPEAL OF JOHN M. SWICK



No. 1252 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Warren County, No. 397 of 1978.

COUNSEL

David W. Swanson, Warren, for appellant.

Patrick J. Kronenwetter, Emporium, for appellees.

Wickersham, Wieand and Beck, JJ.

Author: Wieand

[ 308 Pa. Super. Page 312]

In this class action brought on behalf of 62 owners of residential lots, the trial court enjoined the construction of a 56 unit apartment complex on a ten acre tract of land owned by the appellant, John M. Swick. The principal issue on appeal is whether the members of the class who own lots in a separate subdivision can enforce building restrictions imposed upon the ten acre tract by a common grantor in a prior deed. The trial court held that the building restrictions were enforceable. We affirm.

The ten acre parcel of land which is the subject of this controversy was part of a 60 acre tract in Pleasant Township, Warren County, owned by Margaret E.I. Newbold. On August 7, 1950, Ms. Newbold recorded a plan for a 64 lot residential subdivision, to be known as the Irvine Plot, in the southeasterly portion of the larger tract. The plot plan was accompanied by a declaration imposing various restrictions, among them restrictions limiting the use of lots for residential purposes and authorizing only the erection of a single private residence upon each lot.*fn1 Five years later,

[ 308 Pa. Super. Page 313]

Esther L. Newbold, to whom title to the residue of the 60 acre tract had descended upon the death of her sister, Margaret, created an addition to the original subdivision. This First Addition, as it was called, consisted of 19 lots, all of which were subjected to the same building and use restrictions as the Irvine Plot. A Second Addition to the Irvine Plot was created in 1959. This addition contained 16 lots, including several lots from prior subdivisions, and was subjected to the same restrictions imposed upon the original subdivision lots. Both the First and Second Additions were located to the north of the original Irvine Plot.

The ten acre tract of land with which we are here concerned was conveyed by Esther L. Newbold to Sarah Swick, appellant's mother, on December 23, 1958. In addition to land not previously subdivided, this tract contained four lots and a portion of a fifth from the First Addition. It lay generally in the southwest corner of the original tract of 60 acres. The grantor imposed upon the ten acres a series of restrictions and covenants intended to run with the land. Two of them provided:

1) The premises are conveyed for residence purposes only and no structure other than ___ single private residences shall be erected, placed or permitted on the premises conveyed . . . .

10) Only one dwelling house shall be built on each 11,250 square feet of land.

The appellant acquired title to this ten acre tract by deed, dated January 10, 1964, from his mother. That deed contained the same ...


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