Jones v. Park Lane for Convalescents, Inc.
Jones v. Park Lane for Convalescents, Inc.
Dissenting Opinion
Dissenting Opinion by
The question involved is narrow: What is the proper construction of this building restriction in the light of the “record facts”? The restriction is: “Under and subject to the following Building Restrictions that the said Property shall be used only for the Purpose of erecting thereon Private dwellings
The Complaint in Equity averred: “12. The plaintiff avers that the neighborhood in which the premises of plaintiff and defendants are located is a residential one and that the proposed use of the premises owned by defendants . . . would be incompatible with residential use; that such proposed use would require the frequent use of the proposed new driveway running from Wissahickon Avenue by patients, physicians, employees and visitors of the nursing homes which the defendants propose to operate; that such proposed use would cause the plaintiff to be subjected to objectionable noises, particularly in the summer months; and that such proposed use would deprive plaintiff of the enjoyment of plaintiffs property as a private dwelling . . . .”
Defendant not only did not deny that this was a residential neighborhood, but by filing preliminary objections admitted as true all the facts which were properly pleaded: Narehood v. Pearson, 374 Pa. 299, 96 A. 2d 895; Gardner v. Allegheny County, 382 Pa. 88, 114 A. 2d 491.
Whenever two interpretations of a written instrument are reasonably possible, and one construction produces a reasonable result which is in accord with the likely or clearly possible object, purpose and intent of the parties, and the other construction produces a result which is unreasonable or absurd, the latter construction should never be adopted.
Furthermore, this restriction is controlled by Gerstell v. Knight, 345 Pa. 83, 26 A. 2d 329. In Gerstell v. Knight, 345 Pa., supra, the owner, in 1924, conveyed property by deed containing the following covenant: “. . . one residence only shall be built on the above described tract of land and said residence shall not be nearer to Shawnee Avenue than twenty (20) feet.” The defendants subsequently acquired the land and constructed a magnificent residence which complied with the restriction. In 1940 they proposed to
The cases cited or quoted in the majority opinion lay down well established general principles of law that a building restriction should be strictly construed. However, this rule of construction cannot be used to defeat the intentions of the parties or to (unintentionally) negate or distort the language of a restriction or give it a different meaning or a meaning which will produce an unreasonable or absurd result. Furthermore those cases and the general principles enunciated therein do not control this case because this restriction differs from the restriction in those cases and each case depends on the language of the restriction in controversy
Hoffman v. Parker, 239 Pa. 398, 399, 86 A. 864, was the second case heavily relied upon by the majority. It likewise is clearly distinguishable because of its facts. The restriction prohibited the erection of any building other than dwellings, apartment or flat houses, churches, schools or private garages. A dwelling house wás erected and as the Court there foundthere has been no change in the building, except that in the basement the defendant has erected shelves on which
Hamnett v. Born, 247 Pa. 418, 93 A. 505, was the next case relied upon by the majority. In that case the restriction was that “ . for and during a period of ten (10) years ... no more than one dwelling house shall be erected or maintained on each 40 foot of land.’ ” This Court held that the restriction was not violated by the erection of a duplex house since it would still be “one dwelling house” within the meaning of the restriction, even though used as such by two families.
The fourth authority relied upon in the majority opinion was Kauffman v. Dishler, 380 Pa. 63, 110 A. 2d 389. In that case the restriction was “ ‘That not more than one (1) house, same to be detached or semi-detached, and private garage shall be erected on each lot . . . .” This restriction was held not to prohibit the erection of a three-unit apartment house, since in the Court’s opinion that came within the definition of a house as used in that restriction. The question involved and the Court’s decision were thus tersely and accurately stated by Chief Justice Stern, who wrote the opinion: “The question concerns the scope of the term ‘house’
It cannot be contended by any stretch of language that the words “private dwellings” used in the present restriction can be construed to mean or include a store or a commercial ibuilding or a sanitarium;
Although broad general language can be found in some opinions with respect to subsequent use, such language must be read in connection with and limited to the restriction and the facts in that particular case. See for example, St. Andrew’s Lutheran Church’s Appeal, 67 Pa., supra. An analysis of each case demonstrates that there is not a single authority which limits a restriction such as the present one to original erection and authorizes a subsequent conflicting or diametrically different use.
I would reverse the order and decree of the lower court.
Italics throughout, ours.
In each of said cases the restriction was reasonably susceptible of. the interpretation placed upon it by the Court, and the language of the Court’s opinion therein must of course be read in Connection with the particular restriction in that case. ■
A private dwelling Rouse Ras “a much more restricted meaning than ‘dwelling house’ or ‘house’ or ‘one single dwelling’ and does not include a private sanitarium”: Taylor v. Lambert, 279 Pa. 514, 124 A. 169.
A private dwelling house has “a much more restricted meaning than ‘dwelling house’ or ‘house’ or ‘one single dwelling’ and.does not include a private sanitarium”: Taylor v. Lambert, 279 Pa. 514, 124 A. 169.
The majority admit that the agreement with the Little Sisters of the Assumption does not'affect‘this case. See Landell v. Hamilton, 175 Pa. 327, 34 A. 663; Katzman v. Anderson, 359 Pa. 280, 284, 285, 59 A. 2d 85, 87; Price v. Anderson, 358 Pa. 209, 219, 56 A. 2d 215, 220: Todd v. Sablosky, 339 Pa. 504, 508, 15 A. 2d. 677, 679; Benner v. Tacony Athletic Association, 328 Pa. 577, 581, 196 A. 390, 392, 393; Hunter v. Wood, 277 Pa. 150, 152, 120 A. 781, 782; Phillips v. Donaldson, 269 Pa. 244, 250, 251, 112 A. 236, 239.
Opinion of the Court
Opinion by
Plaintiff appeals from the refusal of the court below to enjoin an intended use of defendant’s
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 moré than two such dwellings and the appurtenances thereto shall be erected thereon. Further that the cost of erection of each of such dwellings
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 ap
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 (pp. 518, 519) that “The covenant is directed against the building alone, not the subsequent use, and when a building is law
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 (pp. 399, 400, A. p. 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 held that the use to which it was put was not a violation of the restriction, and that “the matter of the external construction is the one with which the agreement deals.”
In Mamnett v. Born, 247 Pa. 418, 93 A. 505, the restriction was that no more than one dwelling house should be erected or maintained on each 40 feet of laud. It was held that it was not violated by the erection of duplex houses each of which would be occupied by two families. The court said (p. 420, A. p. 505) : “As was said of a similar restriction in St. Andrew’s Church’s App., 67 Pa. 512, the covenant is directed against the building alone, not its subsequent use, and when a
The above and other pertinent authorities are collated in Kauffman v. Dishler, 380 Pa. 63, 110 A. 2d 389. In that case a restriction that not more than one house, same to be detached or semi-detached, and private garage, should be erected on each lot, was held not to prohibit the building of three-unit apartment houses even though these would be occupied by more than one family. The conclusion there reached from an examination of the cases was (pp. 68, 69, A. p. 391) that “. . . all the authorities are uniform to the effect that a restriction against the erection of a building other than a ‘house’ or a ‘dwelling house’ is a restriction only in regard to the type of construction and not the subsequent use, and that if any restriction on use is intended it should be plainly expressed and not left to implication.”
Appellant relies upon the decision in the case of Gerstell v. Knight, 345 Pa. 83, 26 A. 2d 329, where a covenant in a deed provided that one “residence” only, should be built on the land and it was held that only one family should reside on the land and that the house which had been built thereon could not be altered into residences for two families. The decision turned wholly on the words “one residence only” which the court, whether correctly or otherwise, chose to distinguish from “one dwelling house” or “one building” as embodying the connotation of the use of the land for occupation by only one family.
The authorities give full support to the court’s denial of an injunction to enforce this present restriction.
"Defendant” refers to The Park Lane for Convalescents, Inc., plaintiff not prosecuting bis appeal against High Oaks, Inc.
Examples: — St. Andrew’s Lutheran Church’s Appeal, 67 Pa. 512, 520; Crofton v. St. Clement’s Church, 208 Pa. 209, 212, 213, 57 A. 570, 572; McCloskey v. Kirk, 243 Pa. 319, 326, 90 A. 73, 76; Johnson v. Jones, 244 Pa. 386, 389, 90 A. 649, 650; Rohrer v. Trafford Real Estate Company, 259 Pa. 297, 299, 102 A. 1050, 1051; Dewar v. Carson, 259 Pa. 599, 603, 103 A. 343; DeSanno v. Earle, 273 Pa. 265, 270, 117 A. 200, 202; Taylor v. Lambert, 279 Pa. 514, 516, 124 A. 169, 170; Satterthwait v. Gibbs, 288 Pa. 428, 431, 135 A. 862, 863; Brown v. Levin, 295 Pa. 530, 534, 535, 145 A. 593, 594; Peirce v. Kelner, 304 Pa. 509, 515, 516, 156 A. 61, 63; Henry v. Eves, 306 Pa. 250, 258, 259, 159 A. 857, 859; Kessler v. Lower Merion Township School District, 346 Pa. 305, 308, 309, 30 A. 2d 117, 118; Baederwood, Inc. v. Moyer, 370 Pa. 35, 41, 87 A. 2d 246, 249; Hoffman v. Balka, 175 Pa. Superior Ct. 344, 347, 104 A. 2d 188, 190.
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