Phillips v. Dunseith

• Decision Date: 31 December 1920
• Docket Number: 60
• Citation: 269 Pa. 251,112 A. 240
• Parties: Phillips et al., Appellants, v. Dunseith et al
• Court: Pennsylvania Supreme Court

112 A. 240

269 Pa. 251

Phillips et al., Appellants, v. Dunseith et al

No. 60

Supreme Court of Pennsylvania

December 31, 1920

Argued October 20, 1920

Appeal, No. 60, Oct. T., 1920, by plaintiffs, from decree of C.P. Allegheny Co., Oct. T., 1917, No. 1344, dismissing bill in equity in case of Henry A. Phillips and Margaret E Phillips v. David A. Dunseith and Allegheny Auto Co. Bill reinstated and injunction modified.

Bill in equity for injunction. Before WASSON, J.

The opinion of the Supreme Court states the facts.

The court dismissed the bill. Plaintiffs appealed.

Error assigned, among others, was decree, quoting it.

Gifford K. Wright, of Alter, Wright & Barron, with him Alexander C Tener, for appellant.

William R. Murphy, with him Charles G. McIlvain, and Earl J. Mohn, for appellee.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE KEPHART:

What has been said in the case, Phillips v. Donaldson, 269 Pa. 244, would apply to this appeal but for the laches of appellee.

In 1909 the old church building, located on Ridge avenue and referred to in the former appeal, was leased and turned into a garage principally for storage purposes. The lease and business changed ownership and the real estate was purchased from the church in 1912. In 1917 a new lease was made to the present tenant for a term of five years. When the appellee, Dunseith, purchased the property, it had been used as a garage for three years. He knew of the building restriction, but it was quite natural that he should assume the owners of dominant estates were satisfied the garage was not in violation of the covenant. It was openly conducted in plain view of such owners without protest. The appellants, if not having actual, had at least constructive notice of the limitation imposed, and, if they had wished to enforce their right, nothing appears to have prevented them. After this long period of acquiescence they are not in position to restrain the use thus far made of that portion of the restricted area. The use was increased by a more active business a few months before this bill was filed. Because the garage was permitted to be conducted in a modified way would not preclude them from enforcing the restriction for the enlarged or increased operation: Hohl v. Modell, 264 Pa. 516; Landell v. Hamilton, 177 Pa. 23. The appellees, however, have the right to the continued use of the...