Jones v. Park Lane for Convalescents

• Decision Date: 06 February 1956
• Parties: Arthur W. JONES, Appellant, v. The PARK LANE FOR CONVALESCENTS, Inc. and Hlgh Oaks, Inc.
• Court: Pennsylvania Supreme Court

Page 535

120 A.2d 535

384 Pa. 268

Arthur W. JONES, Appellant, v. The PARK LANE FOR CONVALESCENTS, Inc. and Hlgh Oaks, Inc.

Supreme Court of Pennsylvania.

Feb. 6, 1956.

Rehearing Denied March 6, 1956.

Lewis H. Van Dusen, Jr., John E. Walsh, Albert M. Hoyt, Jr., Drinker, Biddle & Reath, Philadelphia, for appellant.

Simon Pearl, Maxwell E. Verlin, Philadelphia, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, MUSMANNO and ARNOLD, JJ.

HORACE STERN, Chief Justice.

Plaintiff appeals from the refusal of the court below to enjoin an intended use of defendant's ¹ property on the ground that it would constitute a violation of a restriction in the title deeds.

Plaintiff is the owner of premises fronting on the southwesterly side of Wissahickon Avenue in the 22nd Ward of the City of Philadelphia, a portion of which he acquired in 1914 and another portion in 1924. On the northeasterly side of Wissahickon Avenue is the property 6611 Wissahickon Avenue now owned by defendant, to which it was recently conveyed by High Oaks, Inc., formerly known as The Philadelphia Sanitorium Inc. for Christian Scientists, it having been conveyed to the latter as part of a larger tract in 1952 by Little Sisters of the Assumption School for the Training of Nurses. It is subject to a building restriction which was imposed upon the tract by one Anna M. Smith, in conveyances by her in 1910 and 1912, as follows: 'That the said lot or piece of ground hereby granted shall be used only for the purpose of erecting thereon private dwellings and the appurtenances thereto and that not more than two such dwellings and the appurtenances thereto shall be erected thereon. Further that the cost of erection of each of such dwellings shall be not less than $10,000 and Further that no stable or outbuilding shall be erected thereon within a distance of 150 feet of Wissahickon Avenue * * *'. Plaintiff's property is subject to a similar restriction imposed upon it in the deeds by which he acquired title from the son of Anna M. Smith, to whom she had devised her residuary estate.

In 1943 all the parties interested in these restrictions, including the present plaintiff and defendant's predecessor in title, agreed in writing that they should be modified so as to permit the use of the premises affected thereby for the purposes of the organization of the Little Sisters of the Assumption School for the Training of Nurses, and to permit the erection of any additional building or buildings on the premises for such purposes, but the restriction otherwise to remain in full force and effect. Little Sisters of the Assumption School for the Training of Nurses is a charitable institution which conducts a novitiate for educating postulants and novices studying to become nursing sisters of the sick, poor, and it occupied the premises in question for such purpose until 1952 when it conveyed the property to the Philadelphia Sanitorium Inc. for Christian Scientists, now High Oaks, Inc. The latter presently operates a private sanitarium upon premises 609 West Hortter Street, to the rear of a portion of its Wissahickon Avenue premises. The Park Lane for Convalescents, Inc., plans to use its property as a convalescent and nursing home, and for that purpose to make the necessary interior alterations but no external changes or additions. It is that proposed use which plaintiff sought to have enjoined in the court below.

In order properly to consider and determine the question involved it is important at the outset to have in mind the applicable legal principles that have been enunciated, frequently reiterated, and consistently applied, through a long succession of cases decided by this court. ² However variously phrased, they are, in substance, that restrictions on the use of land are not favored by the law because they are an interference with an owner's free and full enjoyment of his property; that nothing will be deemed a violation of a restriction that is not in plain disregard of its express words; that there are no implied rights arising from a restriction which the courts will recognize; that a restriction is not to be extended or enlarged by implication; that every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner. Restrictions limiting the right of the owner to deal with his land as he may desire fall naturally into two distinct classes, the one consisting of restrictions on the type and number of buildings to be erected thereon, and the other on the subsequent use of such buildings. The restrictions in the former class are concerned with the physical aspect or external appearance of the buildings, those in the latter class with the purposes for which the buildings are used, the nature of their occupancy, and the operations conducted therein as affecting the health, welfare and comfort of the neighbors. A building restriction and a use restriction are wholly independent of one another, and In view of the legal principles above stated, the one is not to be extended so as to include the other unless the intention so to do is expressly and plainly stated; to doubt is to deny enforcement. As examples of cases where the manifest intention was to restrict both the erection of buildings and their use may be cited Johnson v. Jones, 244 Pa. 386, 90 A. 649, 950, 52 L.R.A.,N.S., 325, where the restriction was that "nothing but a church or dwelling house * * * shall ever be erected upon any part of the said land; that none of the structures so erected shall ever be used as a business place, manufactory or drinking saloon, or used for any other purpose than a dwelling house, or its necessary outbuildings or a church." So, also, in Drucker v. Russell, 279 Pa. 443, 124 A. 92, where the restriction was that "each of said building lots shall be improved with a dwelling house at least three stories high, * * * and that no portion of the said lots of ground or of the buildings to be erected thereon shall be used for the manufacture or sale of intoxicating liquors, or for any other industrial or commercial purpose." Likewise in Taylor v. Lambert, 279 Pa. 514, 124 A. 169, 170, where the restriction was that "there shall not be erected upon the above described * * * lot of ground or any part thereof a building or buildings designed for any other purpose than a private dwelling house, and that no such building erected thereon shall be occupied or used for any purpose other than a private dwelling house." Again, in Fox v. Sumerson, 338 Pa. 545, 13 A.2d 1, where the restriction was that "the buildings to be erected upon the land herein described shall be nothing other than private dwelling houses; * * * that no building or buildings to be erected shall be at any time hereafter forever altered into or used for any other purpose than as above designated." Numerous similar illustrations might be given of restrictions expressly covering both the type of buildings to be erected upon the land and limitations upon their subsequent use.

In the present case the restriction falls clearly within the class of those which are limited by their terms to the type of buildings to be erected on the land and not to their subsequent use. The restriction is that the lot or piece of ground shall be used only for the purpose of erecting thereon private dwellings, and the fact that the purpose of the restriction is to safeguard the appearance of the neighborhood by providing for the desired architectural type, symmetry, and spacing of the structures, is shown by the further provision that not more than two dwellings should be erected thereon, that the cost of each dwelling should be not less than $10,000 and that no stable or outbuilding should be erected close to the front of the property on Wissahickon Avenue. The restriction contains no statement or provision whatever as to the subsequent occupancy of the structures or the uses to which they might be devoted. The term 'dwellings' or 'private dwellings' is obviously employed in contradistinction to such types of buildings as stores, factories, hotels, assembly halls, and other structures.

In St. Andrew's Lutheran Church's Appeal, 67 Pa. 512, the restriction was that no building should be built other than as and for a private dwelling-house; after the lots were thus improved the restriction was to be of no further effect, meaning merely, as the court said, that it was not intended as a perpetual inhibition but was confined to the first improvement. It was there stated by Mr. Justice Sharswood, at pages 518, 519, that '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.'

In Hoffman v. Parker, 239 Pa. 398, 86 A. 864, the restriction was that no buildings should be erected on the land other than dwellings, churches, apartment houses, and schools. An occupant of one of the dwellings, without changing the exterior of the house, set up a store in the basement for the sale of foodstuffs. The court said that this did not violate the restriction in regard to the erection of the buildings and that if it had been the intention to prohibit such use it would have been a simple matter to frame the language which would so provide, and the court added, 239 Pa. at pages 399, 400, 86 A. at page 865: 'Such restrictions as those under consideration are lawful, but they are not extended beyond their plain and necessary intent. As they operate to limit the uses to which an owner might lawfully devote his property, they must be strictly construed. There is no equitable extension of their terms, and the court cannot read into them an intention which does not plainly appear from the words of the restrictions.' The building having been erected as a dwelling house, and not having been altered in any external way, the court...