St. Andrew's Church's Appeal

• Decision Date: 08 May 1871
• Citation: 67 Pa. 512
• Parties: St. Andrew's Lutheran Church's Appeal.
• Court: Pennsylvania Supreme Court

67 Pa. 512

St. Andrew's Lutheran Church's Appeal.

Supreme Court of Pennsylvania.

February 27, 1871.

May 8, 1871.

February 27th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Appeal from the decree of the Court at Nisi Prius: In Equity: No. 3, to July Term 1869.

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T. Cuyler, for appellant.—There has been an open, visible and notorious use of the premises in a manner inconsistent with the easement claimed for a period exceeding twenty-seven years, and this has been acquiesced in by complainants or those under whom they claim, during all that time.

Such a use was inconsistent with the covenant. Whatever the letter of the covenant may be, its spirit is the exclusion of all business uses of these lots.

The spirit, true intent and meaning of the covenant is that none of the lots should be devoted to mercantile or business uses, and therefore it provides for dwelling as contradistinguished from business houses or stores. Moreover, it may fairly be said that its spirit would exclude whatever to the usual and common taste and judgment of their occupants would render less agreeable a dwelling-house as a place of residence, or diminish its value as an investment.

Wherein is it threatened with violation? A structure of great architectural beauty is intended to be erected, which will, when completed, beautify and adorn the whole neighborhood. No right-minded person could justly say that his dwelling was rendered less beautiful, or less valuable, or less peaceful and comfortable as a home, by the presence of such a church as is proposed to be erected.

III. The plaintiff, if entitled to any remedy, had adequate remedy at law, and

IV. The remedy in equity is discretionary under all the facts and circumstances of the case with the chancellor, and nothing in the circumstances of this case calls for the interposition of a court of equity: Washburne on Easements 577; King v. McCully, 2 Wright 76; Rhea v. Forsyth, 1 Id. 503; Van Beyen v. Van Beyen, 3 Johns. Ch. 286; Biddle v. Ash, 2 Ashmead 211; 2 Story's Eq., §§ 925, 926; 1 Fonblanque Eq. 3 note; Washburne on Easements 581, § 5; Ingraham v. Durwell, 5 Metc. 118; Dana v. Valentine, Id. 8.

S. S. Hollingsworth and G. W. Biddle, for appellees.—The language of the agreement constitutes a covenant: Paschall v. Passmore, 3 Harris 307; Clark v. Martin, 13 Wright 290, 298. It is a covenant running with the land: Spencer's Case, 1 Smith's L. C. 145; White v. Lowry, 3 Casey 257. The court will enjoin what interferes with ordinary enjoyment of a dwelling-house: Walter v. Selfe, 4 De Gex & Sm. 315; Soltau v. De Held, 9 E. L. & Eq. R. 123. Equity will restrain violation of a mutual covenant of this kind: Barratt v. Richards, 8 Paige 351; Biddle v. Ash, 2 Ashmead 211; Commonwealth v. Rush et al., 2 Harris 186; Clark v. Martin, 13 Wright 290-8. This interference is justified, on ground of enforcing specific performance of a contract: Scott v. Burton, 2 Ash. 325; Barret v. Blagrave, 5 Vesey 555; Stuyvesant v. Mayor of New York, 11 Paige 415; Commonwealth v. Rush, 2 Harris 196; Bonaparte v. C. & A. Railroad, 1 Bald. R. 205; Jarden v. P. W. & B. Railroad Co., 3 Wharton 512. A single breach of a continuing covenant is no defence to an action for a subsequent breach: Doe d. Baker v. Jones, 5 Exch. 498; Bleecker v. Smith, 13 Wend. 533; Dumpor's Case and Notes, 1 Smith's L. C. 93-99. The release of part of a continuing covenant, does not work a release of the entire covenant: Smith v. Barnes, Rolle's Abr. 472, pl. 8; Reed v. Norris, 2 Myl. & Craig 361; Williams v. Dakin, 22 Wend. 201.

The opinion of the court was delivered, May 8th 1871, by SHARSWOOD, J.

The affirmance of the decree below might well be rested upon the clear and able opinion of the master.

It is not disputed that the covenant upon which the injunction was prayed ran with the land and was binding upon the defendants; nor has it been pretended that a court of equity is not bound according to well-established principles and precedents to enforce the specific performance of such a covenant by restraining its breach unless some good ground can be shown to the contrary.

It has been argued but not much pressed, that the edifice proposed to be erected by the defendants, if against the letter, is not against the spirit of the covenant. It is urged that it was aimed at preventing what might be a nuisance or annoyance to the owners of other dwelling-houses on the square, and that a church in no sense would be such. It is enough to say in answer to this suggestion, that by confining the erection of buildings to private dwelling-houses, offices, privies or necessary houses, coach-houses or stables, it was evidently intended to prohibit any buildings of public resort, such as a hotel, circus, menagerie, theatre or other similar establishment; and if the plaintiff cannot prevent a church from being built in the first instance, he certainly could not afterwards prevent it from being used for any other purpose. The covenant is directed against the building alone, not the subsequent use, and when a building is lawfully erected on either of the lots so far as that building is concerned, the covenant is at an end. There would be nowhere any power to restrain its application to any purpose not a nuisance in itself. To protect himself, therefore, from such a consequence, it was the clear right of the plaintiff to stand upon the covenant, even though the erection of a church might not prove of any actual inconvenience or annoyance to him so long as it was only used as a church.

It is plain, too, that in such a case the amount of damage which the plaintiff may be likely to suffer from the threatened breach, ought not to enter as an element in the determination. In this respect there is a manifest distinction between cases depending on nuisance and on contract: Attorney-General v. The Railway Companies, Law Rep. 3 Ch. Ap. 99; Hills v. Miller, 3 Paige 254. Indeed, the fact that a jury would not give probably any more than nominal damages is a circumstance which appeals most strongly to the conscience of the chancellor to stretch forth the strong arm of the court for the plaintiff's relief. It is his only adequate remedy for the violation of a clear and indubitable right.

The main contention here, however, has been, that the plaintiff has acquiesced since 1842, in an use or enjoyment of the lots now in question adverse to the rights secured by the covenant. Without discussing a very interesting question which might be mooted as to the legal effect of an adverse enjoyment, upon a covenant running with the land as to which there is neither the bar of the Statute of Limitations nor presumption from lapse of time as held by this court in Trustees of St. Mary's Church v. Miles, 1 Whart. 229, we may concede that such an acquiescence would be an effectual answer to a prayer for equitable...