Parker v. Hough

• Citation: 215 A.2d 667,420 Pa. 7
• Parties: A. Ray PARKER, John O. Cochran, Jay Freeland Chryst and Gloria A. Chryst v. William E. HOUGH, Jr., and Hilda R. Hough, Appellants.
• Decision Date: 04 January 1966
• Court: Pennsylvania Supreme Court

215 A.2d 667

420 Pa. 7

A. Ray PARKER, John O. Cochran, Jay Freeland Chryst and Gloria A. Chryst v. William E. HOUGH, Jr., and Hilda R. Hough, Appellants.

Supreme Court of Pennsylvania.

January 4, 1966.

Harold E. Martin, Lancaster, for appellant.

Charles B. Grove, Jr., May, Grove & Stork, Lancaster, for appellee.

Robert M. Booth, Jr., Booth & Lovett, Washington, D. C., for amicus curiae The American Radio Relay League, Inc.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

BELL, Chief Justice.

Defendants appeal from the Final Decree of the Court below which granted plaintiffs the injunctive relief they sought. Appellants were defendants in an equity action brought by plaintiffs-appellees to restrain appellants from an alleged violation of building restrictions to which the property of appellants and of the Chrysts were subject.

The American Radio Relay League, Inc., intervened in the proceedings before us, and filed a brief in support of the position of the defendants-appellants.

Parker and Cochran are the owners and developers of a residential area in Lancaster County known as 'Golden Acres'. They sold to the Chrysts who are co-plaintiffs, and to the Houghs who are the defendants two adjacent, but not adjoining, lots in Golden Acres. The Chrysts' lots and the Houghs' lots and all lots in that development were sold subject inter alia, to the following building restrictions:

'1. Single Family Unit Dwelling:

'No structure other than a single family unit dwelling shall be erected on any building lot; provided, however, that a one two, or three car attached or detached garage may be erected on any lot on which a dwelling has been or is being erected. Also a small tool house, play house, outdoor fireplace, or paved outdoor living area with adjacent fences, arbors, etc provided such enumerated structures do not exceed twelve (12) feet in height, may, subject to approval, be erected. '10. Signs:

'There shall be no billboards or any other objectionable^[*] structors erected or maintained upon any lot.

'15. Violation of Provisions herein Contained:

'The violation of any of the provisions herein contained is hereby declared and agreed by the acceptance of a deed for any lot to be a nuisance which may remedied by appropriate legal proceedings. * * *'

The Chancellor found that defendant-appellant Hough is a so-called ham radio operator, licensed as such by the Federal Communications Commission. His activity in that field is a hobby and is not pursued for commercial purposes. In order for Hough to send and receive extensive radio messages and signals, he has erected on his premises a triangular radio tower having a base with three 27-inch sides. This tower may be raised and lowered, but normally is maintained at a height of 50 feet above the ground, and has a TV antenna on the top. It is constructed of steel of sufficient strength to withstand a very high wind. Moreover, the tower is covered with wires and has 12 feet long horizontal cross members.

The Chancellor pertinently found: 'The tower is unsightly and objectionable * * *. The development in which the Chrysts and Houghs live is strictly a residential neighborhood of better than average homes * * *. Conditions have not changed since the parties purchased their lots and built their homes * * *. Most dwellings, including that of the Chrysts, have conventional T.V. antennas erected on or above the roofs of the dwellings, and it would be difficult to sell a lot in the development if T.V. antennas were forbidden.' The Chancellor then concluded (a) that the maintenance of the radio tower by defendants-appellants is in violation of the aforesaid restrictive covenants running with the land; (b) that plaintiffs-appellees have a substantial interest in the maintenance of such covenants in order to protect their prized restricted home and their highly residential non-business neighborhood of better than average homes; and (c) that plaintiffs are entitled to the equitable injunctive relief they sought.

An owner of property in this Commonwealth has a tremendously prized and fundamental Constitutional right to use his property as he pleases, subject to certain exceptions hereinafter set forth. Cleaver v. Board of Adjustment, 414 Pa. 367, 371-372, 200 A.2d 408; Andress v. Zoning Board of Adjustment, 410 Pa. 77, 87, 188 A.2d 709; Key Realty Co. Zoning Case, 408 Pa. 98, 104, 182 A.2d 187; Siciliano v. Misler, 399 Pa. 406, 409, 160 A.2d 422, 80 A.L.R.2d 1253; Sandyford Park Civic Assn. v. Lunnemann, 396 Pa. 537, 539, 152 A.2d 898; Lened Homes, Inc. v. Department of Licenses, 386 Pa. 50, 54, 123 A.2d 406; Lord Appeal, 368 P. 121, 125, 81 A.2d 533.

As the Court aptly said in Cleaver v. Board of Adjustment, supra, 414 Pa., pages 371-372, 200 A.2d, page 411:

"* * * "An owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and property. These include a right to use his own home [or property] in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitutions; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws of zoning or police regulations which are constitutional." * * *"

The lower Court decided, as above noted, that defendants violated the covenant and restriction in their deed.

Appellants rely upon Jones v. Park Lane For Convalescents, Inc., 384 Pa. 268, 120 A.2d 535, where the Court, speaking through former Chief Justice Stern, correctly said (pages 271-272, 120 A.2d page 537):

'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. 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.' See to the same effect, ...