St. Andrew's Lutheran Church's Appeal , 67 Pa. 512 ( 1871 )

The opinion of the court was delivered,

by Sharswood, J.

The affirmance of the decree below might well be rested upon the clear and able opinion of the master.

It is not disputed that the covenant upon which the injunction was prayed ran with the land and was binding upon the defendants'; nor has it been pretended that a court of equity is not bound according to well-established principles and precedents to enforce the specific performance of such a covenant by restraining its breach unless some good ground can be shown to the contrary.

It has been argued but not much pressed, that the edifice proposed to be erected by the defendants, if against the letter, is not against the spirit of the covenant. It is urged that it was aimed at preventing what might be a nuisance or annoyance to the owners of other dwelling-houses on the square, and that a church in no sense would be such. It is enough to say in answer to this suggestion, that by confining the erection of buildings to private dwelling-houses, offices, privies or necessary houses, coach-houses or stables, it was evidently intended to prohibit any buildings of public resort, such as a hotel, circus, menagerie, theatre or other similar establishment; and if the plaintiff cannot prevent a church from being built in the first instance, he certainly could not after-wards prevent it from being used for any other purpose. The covenant is directed against the building alone, not the subsequent use, and when a building is lawfully erected on either of the lots, so far as that building is concerned, the covenant is at an end. There would be nowhere any power to restrain its application to any purpose not a nuisance in itself. To protect himself, therefore, from such a consequence, it was the clear right of the plaintiff to stand upon the covenant, even though the erection of a church might not prove of any actual inconvenience or annoyance to him so long as it was only used as a church.

It is plain, too, that in such a ease the amount of damage which the plaintiff may be likely to suffer from the threatened breach, ought not to enter as an element in the determination. In this respect there is a manifest distinction between cases depending on nuisance and on contract: Attorney-General v. The Railway Companies, Law. Rep. 3 Ch. Ap. 99; Hills v. Miller, 3 Paige 254. Indeed, the fact that a jury would not give probably any more than nominal • .damages is a circumstance which appeals most strongly to the conscience of the chancellor to stretch forth the strong arm of the court for the plaintiff’s relief. It is his only adequate remedy for the violation of a clear and indubitable right.

The main contention here, however, has been, that the plaintiff has acquiesced since 1842, in an use or enjoyment of the lots now in question adverse to the rights secured by the covenant. Without discussing a very interesting question which might be mooted as to the legal effect of an adverse enjoyment, upon a covenant running with the land as to which there is neither the bar of the Statute of Limitations nor presumption from lapse of time, as held by this court in Trustees of St. Mary’s Church v. Miles, 1 Whart. 229, we may concede that such an acquiescence would be an effectual answer to a prayer for equitable interference. A chancellor will not enforce the specific performance^of a contract unless the plaintiff has been always vigilant. If he has slept upon his rights for a period far short of that necessary to create a bar by the Statute of Limitations, the doors of the court of equity will certainly be closed against him.

Let us see whether in 1842, or subsequently, there was any actual breach of this covenant which would have entitled the plaintiff to enter, under the clause of entry contained in the deed, or to have maintained an action or a bill for an injunction. It may be well to remark at the outset, that according to the express terms of the instrument in which the covenant is comprehended the restrictions were only to cease “ whenever either of the said lots of ground shall be improved by buildings, which shall be built in accordance with the spirit of this agreement.” The spirit of the agreement evidently contemplated the improvement of the ground by the erection of permanent buildings. That is the popular and ordinary sense of the word “ improved.” It does not refer to mere temporary structures, intended only to answer the purposes of present use, however long that use might continue. We can easily understand the difference, without perhaps being able to draw an exact line. Every case must depend upon its own circumstances. There might be structures upon the lots, from which it would be difficult to say, whether they were thereby intended to be permanently improved. But certainly wooden sheds to cover coal from the weather, or platform scales for the purpose of weighing it, no one would-regard as within the category. If a large and liberal interpretation according to the spirit of the agreement is to be applied to this covenant, then there never was anything done upon the lots or either of them, which was in violation of it, or could be termed an adverse one. The master was perfectly accurate in saying: “ The language of the covenant plainly shows that the restriction was to apply only to the permanent buildings to be erected on the lots, whenever the owners should improve them, and until such time, the owners could use their respective lots in any way they might see fit. So long as a lot should remain unimproved, there could be no non-user of the easement, and any use of the premises other than for the erection of permanent structures could not of itself be such an inconsistent or adverse use thereof that acquiescence in it or lapse of time' would defeat the right to the easement.”

But it is not necessary to insist upon this construction. We may consider that the sheds and the platform scales were violations of the covenant. The office and stable surely were not. They were expressly named as permitted. The third lot from Broad street, that immediately adjoining the plaintiff’s, had no structure upon it whatever but the stable upon the rear. The covenant is several — applicable to each lot separately. Practically if the plaintiff has a right to the advantage of the covenant as to the third lot, all his purpose will be answered. The defendants require all three lots for the church. The railway track which was also on the same lot with the stable was certainly in no sense a building, any more than would have been a walk or road paved with brick or cobble stones.

It is contended, however, that the covenant in permitting an office, privy or necessary-house, coach-house or stable, to be built, intended thereby only such buildings as are appurtenant to a private dwelling-house. It does not say so, and it would be to import a qualification not expressed so to hold. Certainly covenants of this nature which restrain a man in the free enjoyment of his property, are not to be extended by implication. In contending hereinbefore for a liberal construction of the covenant — it was meant liberal to the covenantor — not in the sense of imposing upon him restrictions to which he had not agreed. But be it so as contended for. Non constat that the stable was not built as appurtenant to a private dwelling-house to be thereafter erected ■ on that lot. There is certainly nothing in the covenant which prescribes the order in which these buildings shall be erected— that the dwelling-house shall be built first and the office and stable afterwards — nor to prevent the grantees of the land from taking their own time and mode of putting up the improvements contemplated. Suppose when the stable was first built the plaintiff had filed a bill and prayed an injunction, could not the defendant have answered: Eventually I expect to build a private dwelling-house on Arch street, to which this stable may be appurtenant, in the mean time, however, I mean to use it in connection with my business as a coal dealer. Would any chancellor have enjoined him ? I must say that it seems to me very clear that he would not. The covenant is expressly limited to building; ■ it has not a word in it about use and occupation. The moment the lot ,is improved in accordance with the agreement by the express terms of the instrument the restrictions ceaáe. It is not intended for all time as a perpetual inhibition, but is expressly confined to the first improvement. In the mean time the grantees of the land, by virtue of their ownership, in that respect unrestricted, could use their property for any purpose not a nuisance per se — ex. gr., for a pasture lot, a garden, a board-yard, a marble-yard, a coal-yard; and if for this use in any shape they should wish to have an office, privy or necessary-house, coach-house or stable, as convenient and useful, they could put them up to be applied to the use of the dwelling-house when subsequently erected. Surely the proprietor, without infringing this covenant, could have built back buildings or kitchens, to be used in futuro in connection with houses in front, but in the mean time to be occupied or rented out as distinct and independent tenements. Nothing is more common than that mode of improvement. The sheds and other fixtures — not buildings —which were necessary for the use of the premises as a coal-yard, and the office and stable, we think, were no infringement of the covenant, and of course that there has been no adverse use which can be set up as a bar to the plaintiff’s right.

Decree affirmed and appeal dismissed at the costs of the appellant.

Agnew and Williams, JJ., dissented.