Peirce v. Kelner

• Decision Date: 25 May 1931
• Docket Number: 279,253
• Citation: 304 Pa. 509,156 A. 61
• Parties: Peirce, Appellant, v. Kelner, Appellant
• Court: Pennsylvania Supreme Court

156 A. 61

304 Pa. 509

Peirce, Appellant, v. Kelner, Appellant

Nos. 253, 279

Supreme Court of Pennsylvania

May 25, 1931

Argued April 24, 1931

Appeals, Nos. 253 and 279, Jan. T., 1931, by defendant, in No. 253, and by plaintiff, in No. 279, from decree of C.P No. 3, Phila. Co., June T., 1930, No. 9187, awarding and refusing injunction, in case of Jeannette Trevor Peirce v Bernard Kelner. Affirmed.

Bill for injunction. Before FERGUSON, P.J.

The opinion of the Supreme Court states the facts.

Injunction awarded in No. 253, refused in No. 279.

Both plaintiff and defendant appealed.

Errors assigned were decree.

The decree of the court below is affirmed, the costs in each appeal to be paid by appellant therein.

Walter Biddle Saul, of Saul, Ewing, Remick & Saul, for appellant, Jeannette Trevor Peirce. -- If Tulpehocken Street is to be classified into one of the three types of residential districts described in Burke v. Hollinger, it is submitted it must be classified in either the first or second class, in which a garage is a nuisance per se, and will be restrained. It is not and cannot be described as a neighborhood of hotels, boarding houses, fraternities, clubs, hospitals and the like.

If a garage with accommodations for 90 or 100 cars were built, the situation would be many times worse than is described in George v. Goodovich, 288 Pa. 48.

An apartment home is within the building restriction: Dewar v. Carson, 259 Pa. 599; Murphy v. Ahlberg, 252 Pa. 267.

Henry Arronson, with him Simon Pearl, for appellant, Bernard Kelner. -- The entire proposed structure including the automobile storage space will concededly not constitute more than one building and accordingly that portion of the structure to be used for storage of automobiles cannot be said to violate any part of the building restriction on the eighty-foot strip of defendant's ground.

It is clear that the portion of the apartment house to be used for the storage of automobiles will not violate either the letter or the spirit of the building restrictions in so far as the expression "offensive use or occupation" is concerned: Nesbit v. Riesenman, 298 Pa. 475; Ladner v. Siegel, 298 Pa. 487; Francis v. Dean, 80 Pa.Super. 108.

A covenant that the improvement on a lot shall consist of only one building does not preclude the erection of the contemplated apartment house.

Any kind of building devoted exclusively to residence purposes, including an apartment house structure, may be erected under a covenant limiting the use of the property to residence uses only, or for the erection of dwelling house or dwelling houses: Hamnet v. Born, 247 Pa. 418; Johnson v. Jones, 244 Pa. 386.

The use of the words "private stable" in limiting the character of the stables which might be erected cannot be construed as limiting or restricting the character of the "one building" that may be constructed upon the tract covered by the restriction: Satterthwait v. Gibbs, 288 Pa. 428.

The proposed multiple residence property is in no respect prohibited by the restrictive covenant covering 80 feet of defendant's property.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE KEPHART:

The plaintiff is the owner and occupier of a private dwelling house situate on the south side of Tulpehocken Street between Wayne Avenue and Greene Street, in Germantown, Philadelphia, with a frontage of 80 feet. Defendant owns the adjoining residence property on the east with a frontage of 205 feet, and intends to erect on the lot a seven-story apartment house with one hundred and twenty housekeeping apartments, with garage in the rear to accommodate eighty cars. The eighty feet of defendant's property adjoining plaintiff's is subject to a building restriction. A bill was filed to enjoin the erection of the garage as a nuisance in that neighborhood, and the erection of the apartment house and garage as a violation of the restriction. The court below enjoined building a garage on the eighty feet subject to the building restriction, but denied an injunction against building the apartment house as a violation of the restriction and permitted the erection of a garage within the apartment house on that part of the land not subject to the restriction. Both parties appeal.

We stated in Burke v. Hollinger, 296 Pa. 510, 524, that on appeals on an order of the court below in garage cases, "the decision of the court below will control unless there is an abuse of discretion or a misapplication of our rules to admitted facts," and in Nesbit et al. v. Riesenman et al., 298 Pa. 475, 485, "The decision whether a locality is given over more to business than residence lies in the sound discretion of the court below, and, like any finding in equity, where there is evidence to support it, we will not interfere with the conclusion reached."

The court below found that the neighborhood was not so residential in character that the operation of a garage would be a nuisance per se but that it might become so by the manner in which it was conducted. As there is evidence to support this conclusion, the finding of the court below is conclusive.

The second question presented by the appeals is the effect of a building restriction. It reads as follows: "Under and subject nevertheless to the express condition, restriction and agreement that no livery stable, glue, soap, candle or starch manufactory, tavern or drinking saloon, carpenter shop or other building for offensive use and occupation shall ever be erected or placed upon any part of the hereby granted lot of ground and that not more than one building other than a private stable and necessary outbuildings shall ever be erected or placed upon said lot of ground."

It is argued that the building restriction does not embrace within its terms a garage on the eighty-foot strip, and that it does not prohibit the erection of an apartment house. We have recently stated in many cases the rules relative to the interpretation of restrictions, and that a construction should not be adopted that would defeat the intention of the parties. Words should be taken in their common rather than their technical meaning.

Defendant Kelner complains that a garage is not within the terms of the restriction. This has been definitely settled in the case of Neff v. Gorman, 303 Pa. 186, in an opinion by Mr Chief Justice FRAZER. There the restriction reads: "Under and subject however to the express condition and restriction that no tavern or building for the sale or manufacture of beer or liquor of any kind or description, no courthouse, slaughterhouse, blacksmith, currier or machine shop, poudrette, neatsfoot...