Loeb v. Watkins

Concurring Opinion by

Mr. Justice O’Brien :

I concur in the result reached by the majority, but disagree with the view that equity should grant relief even in the absence of any substantial benefit to plaintiffs.

However, I disagree with the dissent’s view that no substantial benefit has been shown. The dissent takes the approach that since commercial and apartment uses are now possible, the covenant limiting a lot to two dwelling houses is useless. Such is not the case. While eases are legion holding that a change of neighborhood will preclude enforcement of a covenant, I can find no case that deprives a landowner of his contractual right because of the mere possibility of a change of neighborhood. On the contrary, there is authority to the effect that even a continuing pattern of change of neighborhood does not preclude relief where some part of the residential neighborhood still remains. Hunter v. Wood, 277 Pa. 150, 120 A. 781 (1923). The language of the Court, at page 153, applies with renewed force here: “Although the character of the neighborhood is changing, there are other private residences fronting on the same street and adjoining the residence of plaintiff and, aside from the business carried on in the immediate vicinity, the community is still a residential one, consequently that locality has not reached the point when the enforcement of the covenant for the benefit of the adjoining property owner can be said to be a useless act.” Ours is even a stronger case than Hunter. *487In that case there was some change of neighborhood; in the instant case it is clear that the neighborhood is entirely residential, with no more than two private detached dwelling houses per lot. The mere possibility of change does not render enforcement of the covenant useless.

Mr. Justice Roberts joins in this concurring opinion.