Brice's Appeal

Mr. Justice Mercur, delivered the opinion of the court May 5th 1879. Section 6 of the Act of 21st April 1855, Pamph. L. 265, relating to the city of Philadelphia, declares “ that no new dwelling-house or other building within said city shall front upon any street, alley or court which shall be of less width than twenty feet, or without being made to recede so that such street, alley or court shall be of that width, the buildings on each side equally receding; * * * Every new dwelling-house shall also have an open space attached to it, in the rear or at the side, equal to at least twelve feet square.” By section 5 of the Act of 7th May 1855, Pamph. L. 464, it is made the duty of the building inspector to visit and — 88 — inspect each building that is in course of erection, construction or alteration within his district, and see that it is being erected, constructed or altered according to the act, and all acts and ordinances in force in said city. Section 18 of the same act provides that when he inspects, condemns and notifies, and his condemnation and notice are disregarded, he shall petition the Court of Common Pleas, which is authorized to make a decree restraining the continuance of the work and the removal of so much of the building as may have been constructed contrary to law. By virtue of these Acts of Assembly, and in pursuance of their provisions, the decree in this case was made. • The work complained of was the alteration and substantial change of the back buildings of a house, the main part of which fronted on Beach street. The question is whether the alterations and changes as made create a new dwelling-house or other building, within the true meaning and spirit of the act. The changes were both external and internal. Prior to the alteration one part of this back building was two stories high, another part only one story. The main exterior alteration was made by tearing down two frame walls and erecting brick walls in their places, and by extending them so high as to make the whole building three stories. This necessarily required the other Avails to be elevated. Formerly there were three rooms only on the ground floor, two stairways in addition to the hall stairway, two ranges, two outside doors, communicating doors between all of the three rooms on the first floor. The alteration consisted in putting in a partition on the first floor, thereby creating four rooms, and making such further changes that now there are four stairways, besides the hall stairAvay, each extending to the third story; four ranges, each room on first floor having one; an outside doorway to each of said four rooms; two of the doorways between adjoining rooms on this floor are nailed up; and none of the rooms on either the second or third floor are communicating. This construction and arrangement shows a clear intention to make four separate dwelling-houses. Although a part of the old building is retained, yet new and distinct dwelling-houses are built where they did not stand before. Each by itself has the necessary formation and appointments to constitute a cheap tenement house for a family. The object of the act was to secure and protect health and life, by furnishing each family Avith a sufficient quantity of light and pure air, and with a reasonable facility for escape in case of fire. It should be so construed as to give due effect to its wise sanitary provisions. We think the learned judge was clearly right in holding the changes and alterations constituted a neAV building within the mean — 89 — ing of the act. It is conceded that if the buildings are within the act, there is not such an open space attached to each or in the rear or side thereof, as the statute requires, for they all front on a yard only seven feet wide, and have no other open space attached to them. In so far as the decree orders the appellant to open communication between the rooms on each floor, and keep them open, so as to destroy the separate character of the houses, we see no error; but we are unable to find any warrant in the statute to sustain the other part of the decree which restricts the appellant’s right to lease a part of his building separately, or permit it to be so occupied. The power of the court under this act seems to be limited to restraining the continuance of the work, and to ordering the removal or change of so much of the building as may come within the prohibition of the law; but extends not to controlling the use and enjoyment of it. On the building being made to conform to the law, so that it may remain, the right- of the owner to let it to one or to several tenants must remain unimpaired. This part of the decree is reversed and so modified, the other part of the decree is affirmed. And now, May 5th 1879, this cause having been duly argued by counsel, it is now on due consideration thereof, ordered, adjudged and decreed that the appellant, William Brice, owner of the property described in the petition, open communication from room to room on each of the three floors of the back building of said property or dwelling in said petition described, and keep said communication open. It is further ordered, that the costs in the court below, and one-half of the costs of this appeal be paid by the appellant, and the other half of the costs of the anpeal be paid by the appellee.