Jones v. Park Lane for Convalescents, Inc.

Dissenting Opinion by

Me. Justice Bell:

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* and the appurtenances thereto and that not more than two such dwellings and the appurtenances thereto shall be erected thereon, . . . .”

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.

*278In my opinion the parties clearly intended “that the said property shall he used only for . . . private dwellings and appurtenances.” The majority opinion limits the restriction to original erection and permits a private dwelling house, one day after erection, to be thereafter radically altered and “used” for an entirely different purpose. That is contrary to the language, meaning and intent of the restriction. Although the majority opinion is careful not to say so, it logically and necessarily holds that the owner of the servient tenement can one month or one day after the erection of . a private dwelling completely remodel the interior or exterior of the private dwelling or both, and since the restriction has no application to use — which ignores its use provision and clear intent — change it into and use it for a store or a commercial building or a sanitarium or a building for any and every other conceivable use. I believe this is so unreasonable as to be absurd.

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 *279alter this residence into a duplex residence for two families in accordance with original plans. The Court enjoined the defendants from altering the house into two residences. The present Chief Justice did not in that case place his dissent on his present ground, namely, that the word “built” meant “original erection and not usebut on the very different ground, viz., the covenant was “a restriction on the number of houses to be built on the tract, and not on the occupancy of the house when built other than that it he for residential purposes.” Even this limited construction and position were rejected by a majority of the Court. In the instant case the Chief Justice reaches an opposite conclusion, viz., the restriction is not limited to residential purposes, but permits the house to* he (altered and) used for non-residential purposes. The meaning of the present restriction is, I repeat, manifest, and its interpretation is specifically governed by the Cferstell case.

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* and the facts in >the particular case.

*280The majority opinion relies, in the last analysis, on four' cases, each of which is unquestionably distinguishable from the instant case. The first case, and the one upon which both the majority opinion and the appellee place most reliance is (the so-called leading case of) St. Andrew’s Lutheran Church’s Appeal, 67 Pa. 512. The restriction in the deed in that case was: “. . . no building should be built upon either of the several lots of ground, to be used for purposes other than as and for a private dwelling-house, office, . . . or stable; .... Provided . . . that whenever either of the said lots of ground shall be improved by buildings as herein above-mentioned, . . . then and from thenceforth the sañd restrictions . . . shall, ... be deemed and considered of no further force and effect, . . . .” The majority opinion accurately says that this restriction “was not intended as a perpetual inhibition, but [by its specific language] 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 á building is lawfully erected on either of the lots, so far as that building is concerned, the covenant is at an end.’ ” The language of Justice Sharswood was undoubtedly appropriate to the covenant there involved, but equally clearly, it has no effect or applica: tion to the totally different covenant here involved.

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 *281she places her goods [for sale of food]”. How vastly different are the facts in that case fi’om the facts in the instant case. What the majority opinion has likewise inadvertently overlooked is that the defendant still used the dwelling house as her dwelling house. Obviously that case is no authority to change a private dwelling house into an enormous sanitarium, or to change it, as the majority would permit, one day after its erection, into a different building and any different use which defendant may desire.

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’* as used in a building restriction in a *282deed .... It is our conclusion, therefore, that there is nothing in the present restriction that ‘not more than one house shall be erected on each lot’ which would justify an interpretation that would make it read: ‘that no more than one single-family house shall be erected on each lot.’ ”

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;* the only way the majority opinion attempts to justify its construction is to hold that the restriction in the instant case applies only to the original erection and does not affect or prohibit the material alteration of the dwelling'for an entirely different use.**

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.

*283We likewise note that the majority opinion says: . . A building restriction and a use restriction are wholly independent of one another, . . . This independence, as we have seen, is not substantiated by the cases. In my opinion, both logic and the law demand that the converse be true, i.e., that building and use restrictions are dependent, one on the other, unless the converse can be clearly shown.

I would reverse the order and decree of the lower court.

Mr. Justice Allen M. Stearns joins in this dissenting opinion.

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.