Orne v. Fridenberg

• Decision Date: 05 October 1891
• Docket Number: 219
• Citation: 143 Pa. 487,22 A. 832
• Parties: J. F. ORNE v. S. R. FRIDENBERG ET AL
• Court: Pennsylvania Supreme Court

22 A. 832

143 Pa. 487

J. F. ORNE v. S. R. FRIDENBERG ET AL

No. 219

Supreme Court of Pennsylvania

October 5, 1891

Argued April 9, 1891

APPEAL BY DEFENDANTS FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

No. 219 January Term 1891, Sup. Ct.; court below, No. 695 March Term 1881, C.P. No. 1.

On June 3, 1881, John F. Orne filed a bill in equity against Solomon R. Fridenberg, Samuel M. Fridenberg and Isaac S. Isaacs executors and devisees in trust under the will of Louis E Fridenberg, to restrain the maintenance of certain alleged violations of building restrictions,, contained in a conveyance to Thomas C. Rockhill of the premises occupied by the defendants.

The bill averred, in substance, that Edward Shippen Burd, being seised in fee of a certain described lot with the buildings thereon, now 908 Chestnut street, bounded on the east by another lot of the said Burd, now 906 Chestnut street, on which latter stood a large house with wings, the residence of said Burd, and a stable and coach-house in the rear on George (now Sansom) street, by deed dated July 9, 1825, duly recorded, conveyed the said lot and buildings, 908 Chestnut street, to Thomas C. Rockhill in fee, upon the express condition that all the buildings, then on said lot, should within one year from said date, be prostrated, and that said Rockhill, his heirs or assigns, should "not at any time thereafter erect or build, or permit or suffer to be erected or built on said lot, any buildings other than privies, milk or bathing houses, walls, or fences, not exceeding nine feet in height from the surface of the curbstone immediately in front of the said lot," excepting a messuage on the Chestnut-street front "not exceeding sixty feet in depth," with a piazza to the south for a staircase "not exceeding twenty-five feet in depth," and a stable and coach-house on the George (now Sansom)-street front, which was not to be higher nor extend farther north than the stable and coach-house of said grantor Burd then standing on his said mansion-house lot on the east; also that the north wall of any building to be erected on the Chestnut-street front should be built precisely on a line east and west with the north wall of the west wing of said Edward Shippen Burd house, which was ten feet one inch and five eighths of an inch from the south line of Chestnut street, and that "the ground between the said north wall of the said building, so to be erected on Chestnut north wall of the said building, so to be erected on Chestnut street, and the south line of the said Chestnut street, shall be forever left open for a public pavement and footway, free from every obstruction or encumbrance whatever, except steps, cellar-doors, and scrapers."

That said Burd died in 1848 leaving a will and codicils, by force of which and of subsequent conveyances, the premises on the east, 906 Chestnut street, became vested in 1875 in John F. Orne, the plaintiff, in fee-simple; and that the premises, 908 Chestnut street, by divers mesne conveyances and devises had become vested in said Solomon R. Fridenberg and the other defendants, as trustees under the will of Louis E. Fridenberg. It was averred, further, that the stable and coach house of the said Burd, at the time of the said conveyance to Rockhill, was of certain dimensions and height stated; and that the defendants had violated and were violating said restrictions and the easement created thereby, by permitting and maintaining the following erections, structures, and buildings upon said lot, 908 Chestnut street, to wit:

(a) A brick building, on George, now Sansom street, and a frame building annexed thereto, north (south?) of the house, fronting on Chestnut street, which buildings were neither a stable, coach-house, privy, milk, nor bath house, wall or fence, but a tavern and drinking and concert saloon, and were more than nine feet high above the Chestnut street curb, the frame building extending in depth farther north than the said stable and coach-house on the Burd homestead lot adjoining on the east.

(b) A frame building adjoining the piazza of the said house on Chestnut street, on the south thereof, and exceeding nine feet in height above the curbstone in front of the property.

(c) A structure, obstruction, and encumbrance upon the ground between the north wall of said building, 908 Chestnut street, and the south line of said street, being neither steps, cellar-doors, nor scrapers, but an extension of the first-story front part of said building.

That the erections complained of were in violation of the ordinance of Philadelphia of April 11, 1863, prohibiting wooden and brick-paned [?] buildings, were dangerous on account of fire to the plaintiff's buildings on his adjoining lot, filled with valuable merchandise, materially injured the value of plaintiff's property, and interfered with the free access of light and air, and approach thereto.

Upon said averment, the bill prayed: (1) That defendants answer; (2) That they be restrained from keeping and maintaining said erections and buildings, in violation of the said restrictions; (3) That defendants be ordered to remove said tortious erections; and (4) For further relief.

The defendants' answer denied the material averments of the plaintiff's bill and inter alia, averred:

"The physical condition of said lot No. 908 Chestnut street, as to erections, structures, and buildings, is now and was when said bill was filed, and has been since the said defendants' testator first viewed and bought the same on November 1, 1875, unchanged and identically the same; and, to the best of these defendants' several knowledge, information and belief, such present condition had then existed for more than twenty-one years previously; with these exceptions only, that the building occupied by Mr. Monaghan [a tenant] has, since the date of said deed, been enclosed, and some betterments have been done to the front building, not however increasing its size."

Issue having been joined, Mr. James S. Nickerson was appointed examiner; and on October 10, 1888, the examiner having filed his report, the cause was referred to Mr. John M. Collins, as master.

On August 23, 1890, the master filed his report, wherein he found, in substance, that on July 9, 1825, Edward Shippen Burd had conveyed to Thomas C. Rockhill lot now 908 Chestnut street, with the conditions and restrictions contained in the deed as averred in the plaintiff's bill; that, thereupon Rockhill occupied the premises, and while he was the owner thereof complied with said conditions and restrictions; that subsequent owners of the premises, many years at least before the bill was filed, erected buildings upon the lot substantially of the character and position and occupied and used substantially as averred in the plaintiff's bill, and were in violation of the conditions and restrictions contained in the deed from Burd to Rockhill. to

Upon his findings of fact, the master reported his conclusions of law in part as follows:

1. The question arising in this case is important, touching the right to and value of the easement which the plaintiff claims has been violated by the defendants. This easement is in itself a very valuable property, in a pecuniary point of view, worth doubtless many thousands of dollars to the plaintiff owner, and the property No. 908 Chestnut street would sell for an amount proportionately less on account of being subject to said restrictions the right to which in the plaintiff constitutes the easement. And, although there is no evidence as to the value of the said property, No. 908, yet it may be assumed that, when said Louis E. Fridenberg bought said property in the year 1875 for $27,500, subject to mortgages for $45,000, he gave much less than said property would have sold for if it had been free of said restrictions. The said restrictions, if had been free of said restrictions. The said restrictions, if enforced, are of great value in another sense to the dominant lot, the restricted space affording light and air to workmen, through a large number of windows in the west wall of said Orne's storehouse. The use of said space is not merely a convenience, but it is necessary to the enjoyment of the plaintiff's premises. The right, however, to the easement in this case which has been violated, depends in nowise on its utility, or even necessity, but upon a contract, having originated in a grant (as above recited) from E. S. Burd, who necessarily paid for the easement by an allowance or deduction from the consideration for which he conveyed said property, No. 908 Chestnut street, to said Thomas C. Rockhill, his heirs and assigns.

2. It is stated above that if said restrictions created by said Burd in his grant to Rockhill, his heirs and assigns, etc., are valid and subsisting restrictions, then that said long frame building and said bulk-window and the Clinton frame building are manifest violations thereof; and that the permitted use of said brick building on Sansom street for any other purpose than that of a stable and coach-house, without the owner plaintiff's consent, is also a violation thereof. The master now submits that the said restrictions are valid and subsisting restrictions, entitling the owner of the property, No. 906 Chestnut street, to the interference of a court of equity by injunction to restrain the continuance of such violations. As to the right of the owner plaintiff to the benefit and advantage of said restrictions, and of the liability of said defendants, trustees, and their land to bear the burden of the restrictions, there can be no dispute. . . .

[Said restrictions are in apt words to create a conditional estate in fee in Thomas C. Rockhill, his heirs and assigns.] By the terms of the grant they...