Gerstell Et Ux. v. Knight

Opinion by Mr. Justice Linn, This appeal is from a decree dismissing a bill filed to restrain defendants from altering into residences for two families, a house built by defendant Knight and formerly occupied as a residence for himself and family. There is no dispute of fact except as to the meaning of words. In 1924, Mary A. Keenan owned the land, in *84 the city of Easton, now owned and occupied by the plaintiffs, and which then had constructed on it a three-story stone building occupied as her residence; she also owned the adjoining vacant lot, now owned by the defendants. This lot she conveyed by deed containing the following covenant: “It is hereby understood and agreed between the parties hereto that 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 residence which satisfied the restriction. In 1940 they proposed to alter the house into residences for two families. After a hearing on bill, answer, replication and testimony, the learned court dismissed the bill on the ground that such alteration was not a violation of the restriction. The appeal depends on the meaning of the words “one residence only.” Such restrictions are construed strictly in favor of the free use of property; 1 ***violations are declared only for plain disregard of the limitations imposed by express words and not for those implied; 2 they may be construed in the light of the circumstances in which the parties imposed them. 3 We have no doubt about the meaning of the words in question; they mean exactly what they say, and in that sense should be given effect. It is unnecessary to consider near-synonyms nor to resort to rules of construction. The question simply is whether one family or a number of families should at one time occupy the land. Some of the apparent difficulties suggested in argument perhaps result from attempts first to ascertain meanings attributed in other cases to restrictive phrases having some general resemblance to that in the record, and then to substitute such definitions for the words in this deed. *85 We first note that there was a contemporary construction of the covenant by the parties themselves that accords with the construction on which plaintiffs rely. 4 The defendant, Mr. Knight, built a house which a witness described as follows: “The house, as I said before, is a magnificent residence of Spanish architecture with a tile roof, extremely large, which housed Mr. Knight and his numerous children.” It was “one residence only” and was built, as the restriction also required, not “nearer to Shawnee Avenue than twenty (20) feet.” The important word is residence; “to reside” is the infinitive; the phrase “one residence only” is an express restriction on the use of the land and there is no suggestion of anything unlawful in so restricting its use. The limiting words “one” and “only” must also be given their necessary effect. “Residence,” in its popular as well as its dictionary sense, means a place of abode; it is where one lives, either alone, or with one’s family; the family is the generally recognized unit. 5 By using the word “residence” and limiting its scope by the words “one” and “only” the parties agreed that during the existence of the covenant one place of abode only should be built for occupation by one person alone or with his family. If they had not intended so to limit the use of the land they would have used less restrictive words such as those considered in cases referred to in the argument. If, for example, they had restricted the use of the land to one dwelling house, or to one building, an apartment house would have been within this agreement. 6 Obviously, they did not intend that an apartment house should be a use agreed to. *86 The contrast may be illustrated by Charlotte Consol. Const. Co. v. Cobb, 195 N. C. 690, 143 S. E. 522, in which the restriction 7 prohibited the erection of “more than one residence or dwelling house on said lot.” 8 The court referred to the fact that an apartment house was a dwelling house but said: “Residence is a more restricted term than dwelling house, and it would seem to be a refinement of construction to say that the two words, as here employed, were used synonymously, idem re et sensu. Rather it would appear that the second, which has the broader signification was intended as an enlargement over the first.” It was accordingly held that the use of the word “dwelling house” permitted the construction of an apartment house. In our restriction the parties did not use the word “dwelling house”; on the contrary, by using the words “one residence only,” they excluded an apartment house. In Taylor v. Lambert, 279 Pa. 514, 124 A. 169, the restriction was to “a private dwelling house,” and in Fox v. Sumerson, 338 Pa. 545, 13 A. 2d 1, it was to “a private dwelling house for the use of a single family”; in both cases alteration into residences for two families was enjoined. The only case called to our attention in which this court dealt with the word “residence” 9 was Pocono Manor Association v. Allen, 337 Pa. 442, 12 A. 2d 32; the *87 restriction was quoted in full at p. 444. We said: “The dominant idea in the phrasing is that of ‘cottage residences,’ and it is further stipulated that only ‘one cottage or dwelling house’ shall be upon a single lot. Oneness of family in habitation is encouraged; plurality of families in habitations is interdicted.” [p. 446] The defendant was restrained from turning a cottage into residences for several families. While these cases, and others that might be cited, illustrate the application of the rules stated above, they leave the court still confronted with the duty of defining the restriction in use to “one residence only.” We think this clearly means that only one person or his family shall reside on the land. If defendants may reconstruct the residence into two residences, the same principles of interpretation which would allow that change would of necessity allow them to make as many residences as a building on the whole lot 20 feet back of Shawnee Avenue would accommodate under one roof, which would constitute an apartment house, and would be an entirely unwarranted construction of the agreement. Decree reversed; bill reinstated, record remitted for the purpose of granting the injunction prayed for, costs to be paid by defendants. Footnotes [1] Satterthwail v. Gibbs, 288 Pa. 428, 135 A. 862. [2] “St. Andrew's Lutheran Church’s Appeal, 67 Pa. 512. [3] Dewar v. Carson, 259 Pa. 599, 103 A. 343; Pocono Manor Association v. Allen, 337 Pa. 442, 13 A.2d 32. [4] There is evidence that the house was originally planned to make it possible to transform it into two residences, but there is no evidence that the plaintiffs knew anything about that. [5] Compare Pocono Manor Association v. Allen, 337 Pa. 442, 446, 12 A.2d 32. [6] Compare Johnson v. Jones, 244 Pa. 386, 90 A. 649; Hamnett v. Born, 247 Pa. 418, 93 A. 505; Rohrer v. Trafford Real Estate Co., 259 Pa. 297, 102 A. 1050; Peirce v. Kelner, 304 Pa. 509, 515, 156 A. 61. [7] “The lot of land hereby conveyed shall be used for residential purposes only, and not otherwise, and shall be owned, occupied, and used only by members of the white race (domestic servants in the employ of said- occupants excepted), and there shaU not at any time be more than one residence or dwelling house on said lot (servants’ house excepted).” [8] The same court held in Bailey v. Jackson-Campbell Co., 191 N. C. 61, 131 S. E. 567, in construing a restriction against “more than one residence” that an apartment house was not “one residence.” [9] In Mayes v. Hale, 82 Fla. 35, 89 So. 364, the restriction was to “one residence” and it was held that an apartment house was excluded. In Ainsworth v. Elder 40 Ariz. 71, 9 P.2d 1007, the restriction was to “only one residence” which the court held meant a residence for one family.